Guenther v. Walnut Grove Hillside Condo. Regime No. 3
309 Neb. 655
| Neb. | 2021Background
- Guenther owns a condominium in the Walnut Grove regime; the HOA's bylaws and covenants prohibit partitioning or dividing the general common elements.
- Guenther requested permission to build (or repair) a fence in a common-area portion behind her unit to secure her daughter N.G.’s emotional‑support dogs; Guenther offered to pay for the work.
- N.G. has diagnoses of major depressive disorder and anxiety and uses two emotional‑support dogs; the dogs live with Guenther while N.G. attends college part‑time in another city.
- Walnut Grove denied the fence request as inconsistent with regime covenants and proposed alternatives (underground invisible fence, patio privacy fence, tethering); a neighbor (Bolton) allows the dogs in her fenced yard and had offered its use.
- Guenther sued under the federal and Nebraska Fair Housing Acts claiming denial of a reasonable accommodation; the district court held she failed to prove (1) that N.G. is a “handicapped person” under the FHA and (2) that the fence was necessary; the Nebraska Supreme Court affirmed on the necessity ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.G. is a "handicapped person" under the FHA | Guenther: N.G.’s diagnoses and treating physician’s note show she is disabled and benefits from the dogs | Walnut Grove: testimony shows N.G. is not substantially limited in major life activities and no current treatment; insufficient proof of a qualifying disability | Court: district court’s finding that plaintiff failed to prove N.G. is a "handicapped person" supported; but decision rests on necessity, not only status |
| Whether the fence was "necessary" under the FHA reasonable‑accommodation test | Guenther: the fence is needed to alleviate N.G.’s anxiety about the dogs’ safety and thus is indispensable to equal opportunity to use the dwelling | Walnut Grove: fence would violate covenants; alternatives exist (Bolton’s yard, invisible fence, patio fence, tethering); plaintiff has no right to her preferred accommodation | Court: plaintiff failed to prove the fence was necessary (indispensable); alternative measures sufficed, so accommodation not required |
| Proper burden‑shifting/proof framework for FHA accommodation claims | Guenther: courts should apply burden‑shifting so defendant must show undue hardship after plaintiff shows facial reasonableness | Walnut Grove: bench trial requires plaintiff to carry ultimate burden to prove reasonableness and necessity by preponderance | Court: the ultimate burden always remains with the plaintiff; burden‑shifting framework applies mainly in summary‑judgment contexts, not to relieve plaintiff at trial |
| Entitlement to attorney fees | Guenther: (sought fees if prevailing) | Walnut Grove: claimed entitlement as prevailing party | Court: defendant’s request for fees was premature; court did not award fees on appeal |
Key Cases Cited
- Wilkison v. City of Arapahoe, 302 Neb. 968 (2019) (Nebraska Supreme Court decision articulating FHA accommodation standards and burdens of proof)
- US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (Supreme Court decision on the limits of reasonable accommodation and burden‑shifting principles)
- Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th Cir. 2014) (discusses accommodations for assistance/therapy animals in housing contexts)
- Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100 (3d Cir. 2018) (addresses necessity analysis and alternatives when evaluating reasonable‑accommodation claims)