Guenther v. Walnut Grove Hillside Condo. Regime No. 3
309 Neb. 655
| Neb. | 2021Background
- Christine Guenther owns a duplex condominium subject to Walnut Grove Hillside Condominium Regime No. 3 (the HOA) bylaws and covenants.
- Guenther’s daughter (N.G.) has diagnosed major depressive and anxiety disorders and uses two emotional support dogs; the dogs live with Guenther in Omaha while N.G. lives primarily in Lincoln for college.
- In 2018 Guenther requested permission to construct (or repair) a fence through HOA general common area so the dogs could safely be outside; she offered to pay for it.
- The HOA denied the request as impermissible partitioning of a general common element and proposed alternatives (invisible underground fence, privacy patio fence, tethering); a neighbor (Bolton) also permitted use of her fenced yard.
- Guenther sued under the federal and Nebraska Fair Housing Acts claiming the HOA refused a reasonable accommodation; after a bench trial the district court dismissed, finding insufficient proof that N.G. qualified as a handicapped person under the FHA and that the fence was necessary to afford equal opportunity to use and enjoy the dwelling.
- The Nebraska Supreme Court affirmed, holding Guenther failed to prove the fence was indispensable to N.G.’s equal opportunity and that effective alternatives existed.
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 reliance on emotional support dogs establish disability | Walnut Grove: evidence does not show a substantial limitation of a major life activity | Court: insufficient proof N.G. met FHA disability definition in record evidence |
| Whether fence was "necessary" as an accommodation under the FHA | Guenther: a fenced common area is required to alleviate N.G.’s anxiety about dogs’ safety and thus necessary | Walnut Grove: fence would violate covenants; alternatives exist that would achieve equal opportunity | Court: fence not proven indispensable; N.G. already enjoyed dogs at home and alternatives (neighbor’s yard, invisible fence, patio options) were viable |
| Proper burden/allocation of proof for reasonable-accommodation claim | Guenther: urged burden-shifting framework (movant shows facial reasonableness) | Walnut Grove: case tried to the bench where plaintiff retains ultimate burden to prove reasonableness and necessity | Court: in bench trial plaintiff retains ultimate burden to prove both reasonableness and necessity by preponderance |
| Whether HOA’s proposed alternatives were adequate and whether plaintiff is entitled to preferred accommodation | Guenther: she is entitled to her requested accommodation because it best serves N.G.’s needs | Walnut Grove: alternatives are less intrusive and effective; plaintiff has no right to preferred means | Court: plaintiff failed to rebut that alternatives could satisfy FHA goal; not entitled to preferred accommodation |
Key Cases Cited
- Wilkison v. City of Arapahoe, 302 Neb. 968, 926 N.W.2d 441 (Neb. 2019) (sets Nebraska standards for FHA reasonable-accommodation claims and burdens)
- Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th Cir. 2014) (discusses necessity/link to equal opportunity for accommodations)
- U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (U.S. 2002) (explains burden-shifting context for reasonable accommodation claims)
- Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100 (3d Cir. 2018) (addresses availability of alternative accommodations under FHA)
- Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir. 2014) (frames causation/necessity inquiry for FHA modifications)
- Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996) (links necessity to equal opportunity analysis)