Emotional Support Animals – Just say “NO” to bogus ESA letters.

April 2, 2016 By Richard Hunt in Accessibility Litigation Trends, Animals, Apartments, Condominiums, FHA, HOA, Landlord-tenant, Multi-Family, Policies and Procedures FHA ADA Tags: assistance animals, Emotional Support Animals, ESA Letters, Fake ESA Letters, Pet Deposits, reasonable accommodation, service animals

Apartment owners and managers are familiar with the internet industry providing junk disability letters for pet owners. You only have to go to the web to find a dozen or more places that will sell a letter from some kind of alleged therapist certifying that you are disabled and your pet cat, koala or kangaroo is a necessary emotional support animal. Many owners and managers feel helpless when confronted by these letters. After all, organizations like the National Apartment Association warn owners and managers:

“do not ask for details about the resident’s disability” and
“documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.”

These organizations agree that you can verify the authenticity of the letter and signature on a third party letter, but say that you “may not ask for additional information about the disability.”*

We think this advice is wrong. You can fight back against bogus requests for Emotional Support Animals. We will be presenting a free webinar with all the details at noon Central Standard Time on April 15, 2016 and at noon Central Standard Time on April 20, 2016.

In the meantime, here are the basics of why the conventional wisdom is wrong.

First, HUD specifically recognizes that apartment owners and managers are entitled to “reliable documentation” when the disability and need are not apparent. A typical letter from an internet vendor is not reliable on its face because the diagnostic tools used by these vendors do not appear to conform to acceptable medical practice. Nothing in the Fair Housing Act requires that apartment owners and managers grant reasonable accommodations based on letters that have no scientific or medical support.

Second, part of making sure a letter is reliable is confirming not only that it is authentic, but that the author is qualified to make the diagnosis of disability. A string of letters after someone’s name does not mean they are qualified to determine if someone is mentally ill. We don’t let podiatrists diagnose heart disease, and there is no reason to think a marriage and family counselor is qualified to diagnose acute anxiety disorder. Given the already dubious nature of these internet businesses demanding credentials is only reasonable.

Third, you are entitled to ask about the nature of a non-obvious disability because you cannot evaluate a request for reasonable accommodation unless you know what the disability is and how it relates to the particular accommodation requested. As one court says, a request for reasonable accommodation cannot be analyzed except by “by examining the facts and circumstances surrounding [the tenant’s] particular impairment.” (emphasis added). A letter that merely says the tenant has a “mental impairment” is not sufficient because for some mental impairments there is no reason to think an ESA is needed for their use and enjoyment of the apartment they rent.

Finally, you are entitled to know whether the tenant or resident meets the statutory definition of disability. Courts have recognized that not all mental impairments are disabling, and there is no single statutory or medical definition of “handicap” or “disability.” The fact that a letter says the tenant is “disabled” or “handicapped” is not enough to evaluate a reasonable accommodation request because you can’t tell what definition the doctor or therapist used. It it is reasonable to ask that the doctor or therapist certify that the patient meets the statutory definition of handicap under the Fair Housing Act.

Exploitation of the disabilities laws shows a lack of character, but being morally handicapped is not protected by the Fair Housing Act. We don’t believe Congress or HUD intended to create an industry based on shoddy medical practices, and while there are important limits on what you can do, we think in most cases apartment owners and managers can fight junk ESA letters.** Sign up for our webinar on April 15 and April 20 to find out how.

* These quotes are taken from the NAA Emotional Support Animal Toolkit, but I should make it clear that these represent the conventional wisdom found in materials from many Fair Housing Act trainers and lawyers who practice in the field. They represent a cautious approach that makes sense for good faith requests for accommodation, but not for obviously purchased letters.

** Naturally, every individual situation is different, and you should always consult an attorney or well designed policy and procedure before responding to or refusing a reasonable accommodation request, no matter how dubious it appears. Always remember that suspicion justifies asking questions; it does not justify an outright refusal to accommodate.

Special thanks to Professor Jeffrey N. Younggren of the University of Missouri, who advised me on medical issues in this blog, and to Cassie Bonness, co-author with Professor Younggren of a soon to be published paper on the standards of practice for psychologists and therapists asked to provide ESA letters.

Disparate Impact – Will it now apply to disability discrimination under the FHA?

June 28, 2015 By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, Apartments, Condominiums, FHA, Landlord-tenant, Multi-Family, Policies and Procedures FHA ADA Tags: Apartments, Condominiums, disparate impact, FHA Litigation, FHA Policies, private lawsuits

On June 25 the Supreme Court held that FHA discrimination claims can be based on disparate impact. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, at *9 (U.S. June 25, 2015). At first blush this doesn’t seem to have much to do with accessibility claims. When we talk about the policies that discriminate against those with disabilities we usually look at 42 U.S.C. Section 3604(f)(3)(B), which requires reasonable accommodation; that is, exceptions to a policy because the policy has a disproportionate impact on those with disabilities. However, Inclusive Communities Project may have its own disparate impact on claims of disability discrimination. More

Risky business – the FHA forbids discrimination based on perceived risk.

June 8, 2015 By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Insurance, Landlord-tenant Tags: FHA Litigation, FHA Policies

You can’t turn down or evict a handicapped* tenant because renting to him would increase your risk of liability. That is one of the important lessons from the Second Circuit’s June 2 decision in Rodriguez v. Vill. Green Realty, Inc., 2015 WL 3461554, at *15 (2d Cir. June 2, 2015). If a tenant or prospective tenant is willing to accept some risk caused by his or her handicap the landlord doesn’t get to decide he shouldn’t. More

Fido Frenzy Revisited – reasonableness is the key.

October 8, 2014 By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Landlord-tenant, Multi-Family, Reasonable accommodation Tags: FHA Litigation, private lawsuits, private litigants, service animals, support animals, therapy animals

When a Court refers to the case before it as a “sad commentary on the litigious nature of our society” you can be fairly sure that one party or the other is going to do badly. In Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer, 2014 WL 988767 (S.D.Fla. 2014) it was the owner of a condominium development who decided to rely on superficially clever lawyering instead of common sense. The disabled individual who sought a service dog didn’t fare well either, but was, in the end, the winner. The case should be helpful to property owners and managers as they sort through what they can and cannot ask about when confronted with a reasonable accommodation request. More

NIMBY tenants and the ADA

October 8, 2014 By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Landlord-tenant, Reasonable accommodation, Restaurants, Retail, Shopping Centers Tags: ada litigation, DOJ, Landlord-tenant, private lawsuits, real-estate, restaurants, retail

NIMBY (“not in my back yard”) litigation is common under the Fair Housing Act. An organization that serves recovering addicts or individuals with mental disabilities will try to locate in a neighborhood where deed restrictions or zoning prohibits group homes and find its efforts blocked by the city or homeowners association because the neighbors don’t want “undesirable” individuals living in the area. Commercial landlords subject to the Americans with Disabilities Act can face the same kind of pressure not to rent to tenants who serve the disabled. A landlord who succumbs to pressure from other tenants, or makes a leasing decision based on assumptions or stereotypes may find itself on the losing end of a lawsuit or a DOJ investigation.

Special Educ. Services v. Rreef Performance Partnership-I,L.P, 1995 WL 745964 (N.D. Ill. 1995) perfectly illustrates a typical situation. The plaintiff (“SES”) operated a school and vocational education facility for developmentally disabled children. At the expiration of its lease the defendant landlord refused to renew. It claimed to have legitimate business reasons, but they were all tied in one way or another to the disabilities of the children or their needs. It complained, for example, that the busses transporting the children blocked parking places, that the children generated excessive complaints about noise or playing games in the parking lot, and, perhaps most telling, that the location was not “an appropriate place” for for children. What the plaintiff did not do was make any effort to accommodate the cause of the problems, or even to address them with SES until it refused to renew the lease. The district court had little difficulty finding that SES would probably prevail in its lawsuit and granted an injunction against eviction.

The DOJ’s involvement in this kind of commercial leasing can be found in its handling of a case by Sinergia, a non-profit that operated an facility to help the mentally disabled. When a landlord refused to rent to it because other tenants complained the DOJ stepped in. The result was a consent decree that included a $75,000 payment to Sinergia and a court order compelling the landlord to comply with the ADA.

What can a landlord do when faced with the tug-of-war between concerns about other tenants and customers and the requirements of the ADA? There are four key things to remember:

First, the landlord must understand that tenants who serve those with disabilities must be given special treatment. In the language of the statute, they must be given reasonable accommodations. For an ordinary tenant, violations of lease requirments or disruptive behavior by the tenant’s customers might well justify a refusal to renew or, if serious enough, a reason to evict. If those same concerns are the related to disabilities of the tenant’s customers the landlord cannot rely on its right to refuse to renew. Instead the landlord must engage in a conversation with the tenant in which the landlord seeks solutions; otherwise non-renewal or eviction are likely to be seen as discrimination.
Second, the landlord must document its efforts to accommodate tenant problems related to disability. The landlord in the SES case had legitimate concerns about SES as a tenant, but it did nothing to express those concerns until it decided not to renew the lease. This kind of passive-aggressive behavior will not be accepted for tenants protected by the ADA. The landlord must document its efforts to deal with tenant problems so that it is clear when the inevitable lawsuit is filed that the landlord’s concerns were not merely a pretext for disability discrimination.
Third, when considering a new lease the landlord needs to carefully consider whether its concerns are based on stereotypes about those with disabilities. A landlord may believe that recovering addicts are more likely engage in criminal conduct than ordinary customers, but if it refuses to lease to an addiction recovery organization it must be prepared to prove in court that this is a fact. It cannot rely on “common knowledge” about the matter.
Finally, the landlord considering a new tenant must also consider what reasonable solutions it might find to any real problems it may face. If the tenant uses busses, as was the case in SES, the landlord must make an effort to deal constructively with the parking problem rather than merely refusing to sign a new lease or renew an old one. Again, dialogue with the prospective tenant is critical, and must be focused on finding solutions rather than using problems as an excuse not to sign a lease.

At the end of the day the ADA’s requirements for dealing with tenants who serve the disabled are not much different than the best practices in commercial leasing; that is, work with tenants to solve problems. The difference is that refusing to engage in constructive dialogue with a tenant protected by the ADA can result in a lawsuit, an investigation by the Department of Justice, and possibly a steep fine as well as money spent on lawyers. For ordinary tenants being reasonable is optional; for ADA tenants it is the law.