AN EXPENSIVE FAIR HOUSING LAWSUIT

By Mark Zinman | Zona Law Group

In last month’s AZREIA newsletter, we reported on a case cased Henderson v. Five Properties, LLC. In that case, the United States District Court for the Eastern District of Louisiana ruled in favor of the apartment management company in a case involving emotional support animals (ESAs) and held that the manager didn't have to waive a pet fee for an ESA. They cited insufficient documentation and pointed to Henderson’s own statements indicating she could afford the fee if it were paid in installments. We wrote, though, “that this should NOT be interpreted as advice that you should alter your policy in regard to the waiver of pet deposits and pet fees for assistance animals. At this time, we do not suggest clients charge fees or pet rent for ESAs. Instead, this article is intended to provide you with information as to how there is a change in the courts, given the US Supreme Court's change in what deference courts are to give to agency memos.”

Since that time, there has been another case, that goes in the opposing direction and that is the reason people should not change their policies based solely on one case. Two Wisconsin landlords agreed to settle a federal fair housing complaint by paying $20,000, for allegedly discriminating against a resident who had two cats and 3 rats as emotional support animals. Allegedly, the landlords took the position that only 1 assistance animal was allowed, and tried to charge fees and other charges to the tenants for having multiple animals. The resident did have a doctor’s note saying the need for each specific animal.

This case was settled and did not go through a trial. Therefore, there was no official finding of whether that many animals is a reasonable accommodation. It is telling however, that HUD would prosecute the case. The case does highlight that there is no bright-line rule for the number of assistance animals and that each such request must be reviewed individually.

When landlords get a reasonable accommodation request, it is imperative that they engage in the interactive process and talk to the resident about the request.A landlord cannot simply deny a reasonable accommodation request without going through this process. If you are not well briefed in this area, we strongly suggest contacting an attorney to advise on fair housing matters.