This week’s news is a year old, but very important for apartment owners and managers confronted by the increasing flood of fake emotional support animal requests.* In March of 2017 the Virginia Fair Housing Board, which carries out Virginia’s mandate for disability rights in housing, issued a formal guidance on what constitutes reliable evidence of a disability and a disability related need for an emotional support animal. You can download the guidance here, but here are the highlights. They are based on the Board’s position that reliable evidence of a disability can only come from someone who has a therapeutic relationship with the tenant. More
On May 17 a jury in the District of Montana found that a landlord violated the Fair Housing Act by requiring a pet deposit from a disabled tenant and awarded damages of almost $40,000. (U.S. v. Katz et al, Case No. 14-68). Why is this good news for landlords? Because there was a jury trial, meaning the landlord had a chance to win.
HUD and the DOJ have long taken the position that any requirement of a pet deposit for a service dog or assistance animal* violates the reasonable accommodation provisions of the FHA. (Notice dated April 23, 2013, FHEO-2013-01). The position is illogical on its face because HUD and DOJ recognize that a disabled tenant remains responsible for any damage caused by a service or assistance animal. If the tenant remains responsible for the damage, why not require a damage deposit? HUD does not require that landlords waive a rent or general damage deposit for disabled tenants, and a pet deposit is no different. Nonetheless, HUD has spoken and requests for accommodation in the form of pet deposit waivers have skyrocketed since 2013. More
The National Psychologist’s January/February 2017 edition includes Richard’s article “What is a disability, anyway?” The article explains for mental health professionals why caution is needed in diagnosing a “disability” when the term has a legal, rather than a medical, meaning. You can read the full text of the article at The National Psychologist online edition. Those who are interested in the ways in which sloppy and even unprofessional diagnosis are feeding a boom in fake emotional support animal requests should check our earlier blog Just Say “No” to bogus ESA requests and email for a copy of our webinar on dealing with fake requests for emotional support animals.
By Richard Hunt in Accessibility Litigation Trends, Animals, Apartments, FHA, FHA Emotional Support Animals Tags: Fair Housing Act Emotional Support Animals, Fair Housing Act medical verification. Emotional Support Animals
Nobody likes fake Emotional Support Animal letters, but a recent DOJ consent decree should remind apartment owners that reasonable verification of a disability can spill over into unreasonable discriminatory demands.
The DOJ press release, and a link to the decree, can be found HERE. The apartment managers’ sin was requiring that an individual claiming to be disabled provide a “prescription” for the emotional support animal that included an assumption of liability by the health care provider for damage caused by the animal. You don’t have to be a mind reader to understand what management was thinking. If the health care provider is taking a risk, he or she will be more honest about the existence of a disability. HUD, DOJ, and any court would see it differently. They saw threatening a health care provider as a way of keeping those with disabilities from exercising their rights. More
Just after posting yesterday’s blog on the perils of being ignorant in FHA matters I received a copy of a recent charge of discrimination showing how reasonable accommodation can be done wrong. You can read the complaint here. The facts as presented in the charge show that the landlord made three important mistakes when refusing a request for a reasonable accommodation. The first was the manager’s absolute refusal to consider modifying the apartment’s no pet policy in response to the first request for accommodation. Absolute refusal is never the right way to respond to an initial request for accommodation because it fails the requirement that the management engage in an interactive process with the tenant. More