In a case typical of a property law class, the Supreme Court of Iowa confronted a conflict between one tenant who needed an emotional support animal and another who was allergic to dogs. Cohen v. Clark, 945 N.W.2d 792 (Iowa 2020). The lease for both tenants contained a “no pets” clause. The question was whether the landlord had a duty under fair housing laws to make an exception to that policy as a “reasonable accommodation” for a tenant with a disability. In this case, however, two tenants arguably had disabilities and the means of enabling one to enjoy housing would have deprived the other of housing.
The court resolved the conflict by using the time-honored property law doctrine of “first in time, first in right.” Since the tenant with pet allergies moved into the building first, and did so because of its no-pets policy, the court held that the landlord had no duty to waive the no-pets policy for a new tenant that had an emotional support dog.
The landlord had attempted to protect both tenants by asking the tenants to use different stairways but that accommodation did not solve the problem. The court found that the accommodation was not “reasonable” since it still posed a “direct threat” to the prior tenant. The fact that the tenant with allergies was “first in time and the dog posed a direct threat to her health tips the balance in her favor in this case.”