A federal judge has ruled that a landlord did not have to automatically waive its emotional support animal fee for a tenant with an emotional support animal (ESA) under the Fair Housing Act (FHA), according to a report in jdsupra.com.
Judge Sarah Vance of the U.S. Eastern District of Louisiana held that a tenant with an ESA seeking to have her landlord waive a generally applicable animal fee was required to prove that the waiver was both necessary for her to use and enjoy her home and reasonable.
In reaching her ruling, Judge Vance rejected the notion that guidance issued by the U.S. Department of Housing and Urban Development (HUD) always requires housing providers to waive pet fees for people with ESAs.
She found the HUD Notice stating that a housing provider may not charge a fee or deposit for a service animal or other assistance animal “unpersuasive.”
Judge Vance rejected the argument that landlords always must waive fees for tenants with ESAs. Instead, she concluded that whether such accommodation is required is a fact-specific, case-by-case determination.
The judge said in the ruling it is the job of the courts, not agencies like HUD, to determine laws and the Constitution.
“Agency interpretations are only entitled to respect if they have the power to persuade. Ultimately, she found the HUD notice stating that a housing provider may not charge a fee or deposit for a service animal or other assistance animal ‘unpersuasive’.”
This case involved the plaintiff’s request for a reasonable accommodation under the FHA and Louisiana Equal Housing Opportunity Act (LEHOA), specifically seeking a waiver of a $400 animal fee for her dog, which she claimed was an ESA.
The defendants’ apartment complex allows animals, so there was no issue with the dog living there. The only dispute was whether the defendants had to waive the animal fee they charged all tenants for the plaintiff just because she had an ESA.
Adams & Reese attorneys representing the landlord argued that the FHA does not say housing providers must waive animal fees for ESAs.
It only says they must make reasonable accommodations that are necessary for disabled people to use and enjoy their homes equally.
The plaintiff, represented by the Louisiana Fair Housing Action Center, argued that it is always necessary to waive animal fees for people with ESAs to afford them an equal housing opportunity.
“Ultimately, Judge Vance found the plaintiff failed to prove she needed a fee waiver because she did not put forward any evidence to demonstrate that waiving the fee would alleviate the effects of her disability and the record showed the plaintiff could afford the fee, particularly if given the option to pay in installments,” judsupra.com reported.
Why This Decision Matters for Landlords
For years, HUD, the DOJ, and others have maintained that housing providers must waive fees whenever someone claims they are disabled and need a service or assistance animal, period.
Though not actually the law, this idea was perpetuated through Internet websites that have profited by promoting the sale of ESA prescriptions by advertising that purchasers may save money by avoiding animal fees. Judge Vance’s ruling clarifies that the analysis does not begin and end with the delivery of an ESA letter from a tenant to a landlord.
Instead, tenants seeking fee waivers must prove they need them and that their request is reasonable under the circumstances.
Judge Vance’s ruling provides guidance to landlords about how to assess both the need for and the reasonableness of fee-waiver requests. It also confirms that alternative accommodations, such as allowing tenants to pay over time, can be effective.
Read the full report from jdsupra.com here.
