Kaman Cusimano Logo

Condo | HOA Lawyers

Another Helpful Emotional Support Animal Case


Plaintiff, Cohen (“Tenant”) and Defendant, Clark (another tenant, “Clark”) leased separate apartments in the same building on the same day, July 21, 2006.  Both leases prohibited pets in the building or on the premises.  Tenant picked the apartment in part because of its no pet policy, as she had a severe allergy to pet dander that caused her to carry an EpiPen to protect against anaphylactic shock.  A month after entering into the lease, Clark requested an emotional support dog as a reasonable accommodation.  Clark provided the landlord with a letter from his psychiatrist stating that he had mental illness that impaired his ability to function.  The psychiatrist recommended that for his well-being he own and care for a dog.  The manager advised the tenants of the request and asked if any had allergies.  Tenant responded providing detailed information relative to her pet allergy.  The manager contacted the Iowa Civil Rights Commission (“ICRC”) and requested it to review the matter.  “The ICRC’s housing provision is nearly identical to the Federal Fair Housing Act (FHA).” The ICRC told the manager that Clark could not be moved to another building as that was unreasonable and that the manager had to attempt to accommodate both issues (Clark’s pet and the Tenant’s allergy).  The manager had them use separate stairwells.  Tenant had allergic reactions such that she seemed to have a permanent cold and her throat swelled at times.

Trial Court

After a year, Tenant sued.  The trial court said that the Tenant had failed to advise the landlord of her continuing allergic reactions and that the landlord had made reasonable accommodations.  Tenant appealed.

Iowa Supreme Court

The supreme court found that Clark and the Tenant could not live in the same building.  The court also found that the right to physical well-being did not take precedence over another right to mental well-being and vice versa (so neither right was superior).  The court held that when these two issues collide a priority-in-time test should be applied as a factor in determining reasonableness.  In this case, Tenant signed her lease several months before Clark, and Clark leased knowing it was a no-pets building.  Under the circumstances Clark’s request was not reasonable.  The court also found that the landlord breached its lease by allowing the animal in and awarded the Tenant damages of one month’s rent.  [So you know – two lengthy dissents were filed, one of which would have found that Clark was entitled to the reasonable accommodation because in that justice’s opinion the holding of the majority is “not supported by the common law and is contrary to the letter and spirit of the fair housing laws.”  Another Justice also agreed with this dissent.]

  1. Every emotional support animal request does not have to be accommodated;
  2. The process to follow, if you are a manager or board, and receive an emotional support animal request in a no-pet building is:
    1. Make sure that the request meets the FHA standards for the request:
      1. D = Disability
      2. A = Accommodation request
      3. N = Need for accommodation for the full use and enjoyment of the property
      4. C = Cost – Does the accommodation impose an undue cost on Association; and
      5. E = Effect – Does granting request fundamentally change Association’s operation.
    2. If the answer is yes, ask the other residents if any of them have any allergies to pets;
    3. If no one has any allegories, grant the request. If someone has allergies, determine if any accommodation can be made that satisfies both parties;
    4. If the parties can’t agree, involve the local FHA or similar state agency; if you still can’t get consensus;
    5. File a declaratory judgment suit to avoid the risk of a suit against you or your association for violating someone’s contractual or FHA rights.
  3. Recognize that saying “yes” or “no” to the request can result in court action, but saying “yes” to the request is far less likely to result in the Association having to pay attorney fees.

Cohen v. Clark, 945 N.W. 2d 792 (Iowa,, June 30, 2020)


Three bars icon gold

Recent blog Posts

Three bars icon gold

Partner Nicholas Meinert Presents at Northern Ohio CAI Chapter on the Corporate Transparency Act

On June 14, 2024, Partner Nicholas Meinert presented to the Northern Ohio Chapter of the ...
Read More →

Partners Dan Miske and Lydia Chartre presented at Wisconsin’s Chapter of CAI on reserves and lending

On May 23, 2024, Partners Dan Miske and Lydia Chartre presented a webinar for the ...
Read More →

Strengthening Community Associations: The Vital Role of a Comprehensive Assessment Recovery Policy and Procedure

Community associations are founded on principles of shared responsibility and collective maintenance. From maintaining common ...
Read More →

Partner Nick Meinert presented at OLCA’s Spring Conference

Partner Nicholas Meinert gave a presentation at the 2024 Ohio Lake Communities Association’s Spring Conference. ...
Read More →