Guenther v. Walnut Grove Hillside Condo. Regime No. 3
309 Neb. 655
| Neb. | 2021Background:
- Guenther owns a duplex condominium in a Walnut Grove condominium regime subject to HOA bylaws and covenants.
- Her daughter N.G. (diagnosed with major depressive disorder and anxiety) uses two emotional support dogs that live with Guenther; a prior support dog died after they moved in.
- In 2018 Guenther requested permission to build (or complete) a fence in a general common area to allow the dogs safe outdoor time; Walnut Grove denied the request as an impermissible partition of common elements and proposed alternatives (invisible fence, patio privacy fence, tethering, use of a neighbor’s fenced yard).
- Guenther sued under the federal and Nebraska Fair Housing Acts seeking a declaration that Walnut Grove refused a reasonable accommodation; the district court held she failed to prove N.G. is a “handicapped person” under the FHA and failed to prove the fence was necessary to afford equal opportunity to use and enjoy the dwelling.
- On appeal the Nebraska Supreme Court affirmed, concluding Guenther failed to prove the fence was necessary (dispositive), and that effective alternatives existed; the court did not resolve ancillary assignments of error and declined to award attorney fees at this stage.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the fence "necessary" under the FHA to afford equal opportunity to use and enjoy the dwelling? | Fence is required to ameliorate N.G.’s anxiety and protect the dogs, thus indispensable for equal enjoyment. | Not necessary: N.G. already benefits from the dogs at the unit; alternatives exist and HOA rules bar partitioning common elements. | Held: Not necessary. Plaintiff failed to show the fence was indispensable; alternatives effective. |
| Does N.G. qualify as a "handicapped person" under the FHA? | N.G. has diagnosed major depressive and anxiety disorders and benefits from emotional support animals. | Evidence shows N.G. is not currently receiving treatment/medication and no proof of substantial limitations of major life activities. | Held: Insufficient proof that N.G. is a "handicapped person" under the FHA. |
| Should a burden-shifting framework apply (movant shows facially reasonable; opponent proves undue hardship)? | Guenther urged burden-shifting so HOA must prove undue hardship after facial reasonableness shown. | In a bench trial, plaintiff bears ultimate burden to prove reasonableness and necessity. | Held: No burden-shifting here; plaintiff retains the ultimate burden to prove necessity and reasonableness. |
| Are attorney fees warranted for the prevailing party? | Guenther sought fees; Walnut Grove sought fees as prevailing party. | Walnut Grove asserted prevailing-party status and requested fees. | Held: Request for attorney fees is premature on appeal; not awarded. |
Key Cases Cited
- Wilkison v. City of Arapahoe, 302 Neb. 968 (2019) (Nebraska Supreme Court decision setting standards for FHA reasonable-accommodation claims and burdens)
- US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (burden-shifting framework discussion in accommodation contexts)
- Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th Cir. 2014) (accommodation must alleviate disability’s effects to provide equal opportunity)
- Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100 (3d Cir. 2018) (consideration of reasonable alternatives in necessity inquiry)
- Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996) (linking necessity to equal opportunity goal under FHA)