Guenther v. Walnut Grove Hillside Condo. Regime No. 3
961 N.W.2d 825
Neb.2021Background
- Christine Guenther owns a condominium in the Walnut Grove regime; the HOA bylaws prohibit partitioning or altering "general common elements."
- Guenther’s daughter, N.G., is diagnosed with major depressive disorder and anxiety and uses two emotional support dogs; they live with Guenther part-time.
- In 2018 Guenther requested HOA permission to build (or repair) a fence through common-area land to allow the dogs to safely be outside; she offered to pay.
- Walnut Grove denied the request as contrary to covenants and offered alternatives (invisible underground fencing, a patio privacy fence, tethering, or use of a neighbor’s fenced yard).
- Guenther sued under the federal and Nebraska Fair Housing Acts for refusal to make a reasonable accommodation; after a bench trial the district court dismissed, finding Guenther failed to prove N.G. is a "handicapped person" under the FHA and failed to prove the fence was "necessary."
- The Nebraska Supreme Court affirmed, holding Guenther did not carry her burden to show the fence was necessary to afford equal opportunity to use and enjoy the dwelling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is N.G. a "handicapped person" under the FHA? | N.G.'s diagnoses and doctor’s note show she is disabled and benefits from emotional support animals. | Walnut Grove contested sufficiency of proof that N.G.'s impairments substantially limit major life activities. | Court found insufficient proof on record that N.G. met the FHA disability definition. |
| Was the requested fence "necessary" to afford equal opportunity to use and enjoy the dwelling? | The fence would reduce N.G.'s anxiety about the dogs' safety and thus is necessary. | A fence through common area violates covenants; alternatives are available that would achieve equal opportunity. | Court held Guenther failed to prove the fence was indispensable; alternatives and existing use (neighbor’s yard, walks) undercut necessity. |
| Does a burden-shifting test apply here (plaintiff shows facial reasonableness, defendant shows undue hardship)? | Guenther urged burden-shifting so Walnut Grove must prove undue hardship or unreasonableness. | Walnut Grove relied on record and alternatives to show accommodation not required. | Court held burden-shifting described by Barnett applies at summary judgment only; at trial plaintiff retains ultimate burden to prove reasonableness and necessity. |
| Were HOA alternatives unreasonable; is defendant entitled to attorney fees? | Guenther argued alternatives were inadequate and sought fees if she prevailed. | Walnut Grove argued alternatives were sufficient; sought fees as prevailing party. | Court found plaintiff failed to meet burden so claim fails; did not decide fee entitlement (request premature). |
Key Cases Cited
- Wilkison v. City of Arapahoe, 302 Neb. 968, 926 N.W.2d 441 (Neb. 2019) (Nebraska precedent setting FHA reasonable-accommodation standards and burden rules)
- US Airways, Inc. v. Barnett, 535 U.S. 391 (U.S. 2002) (burden-shifting analysis for reasonable accommodation claims in summary-judgment context)
- Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th Cir. 2014) (necessity element tied to equal opportunity goal)
- Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir. 2014) (necessity/causation inquiry for accommodations)
- Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100 (3d Cir. 2018) (consideration of alternative accommodations when assessing necessity)
- Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996) (necessity as but-for causation to obtain equal opportunity)
- Bryant Wood Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 1997) (plaintiff bears burden to prove elements of reasonable-accommodation claim)