IS FAIR HOUSING CASE LAW CHANGING? MAYBE, BUT DO NOT DO ANYTHING YET

Those readers of ours that follow Supreme Court matters, may recall that the US Supreme Court recently struck down a long standing principle that courts are to give great deference to executive agencies. This was called the Chevron deference, and it meant that if an agency such as HUD had published a memo on a legal question the courts should give great deference to such memo when deciding a specific court case. The Supreme Court recently struck that principle and said that courts should interpret laws as written and not defer to executive agencies.

Theoretically, this opens long-standing interpretations to be changed by the courts. Legal scholars around the country are waiting to see how new court cases will be handled, without giving this deference to executive agencies. Said another way, we are potentially entering a new era where settled areas of law are given a new look. This could have very practical implications for everyone.

This just happened in one fair housing issue. Before even reporting on it, it is important to note that we do not suggest you change your policies on banning pet fees for emotional support animals (“ESA”). We are merely reporting on this case, and would only suggest a change after there have been more court rulings or a decision by the Supreme Court. For now, this is only to keep clients up-to-date and we do not suggest you make policy changes.

In Henderson v. Five Properties, LLC, 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. Michaela Henderson, the plaintiff, requested a waiver of a $400 nonrefundable animal fee when applying to rent an apartment at Sunlake Apartments, claiming her dog Tydus was an emotional support animal necessary for her mental health. Although she provided a letter from a nurse stating her need for the ESA, the management denied the waiver. They cited insufficient documentation and pointed to Henderson’s own statements indicating she could afford the fee if it were paid in installments.

Henderson sued under the Fair Housing Amendments Act and Louisiana Equal Housing Opportunity Act, arguing that the refusal to waive the fee was discriminatory. The Court disagreed, finding that Henderson failed to prove the fee waiver was necessary for her to use and enjoy the apartment, especially since she acknowledged she could pay over time. The Court also determined the requested accommodation was not reasonable under the facts presented.

The ruling reinforces that a person with a disability must show not only a connection between their condition and their request, but also that the accommodation is essential.

This case highlights the fact-intensive nature of housing accommodation claims and the importance of clear documentation. Please note, 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.