HUD has consistently taken the position that a landlord can never charge pet rent or a pet deposit for a service or assistance animal.¹ It is not a position that makes any sense although HUD has held it for a long time.² In Leslie v. 1125 Hammond, LP, 2023 WL 3858575 (Ga. App. June 7, 2023) the Georgia Court of Appeals explains why the position is wrong:
As an initial matter, it appears that Leslie has failed to show that his requested accommodation to waive the pet fees for his dog was “necessary to afford him an opportunity to use and enjoy his dwelling.” . . . . A “necessary” accommodation is one that “alleviates the effects of a disability,” and a plaintiff must “show, at a minimum, that the accommodation affirmatively enhances his quality of life by ameliorating (or reducing) the effects of his disability.” . . . . Here, Leslie’s requested accommodation was not itself to have a service dog (as that was apparently already allowed), but he instead requested that Sync Residential waive any relevant pet fees for the dog. Leslie has not shown that waiving the pet fees would itself “alleviate the effect of his disability” any further than the benefit already provided by having the service dog. . . . Leslie has not pointed to evidence that he lacks the reasonable financial capability to pay the pet fees, whether because of his disability or otherwise.4 . . . Thus, it appears that Leslie has failed to show that his request to waive the pet fees was necessary to accommodate his PTSD.
The Georgia Court is not the first to make the common sense argument that waiver of a pet deposit should only be required if it is necessary for the equal use and enjoyment of a dwelling.³ In U.S. v. Barber, 2014 WL 4988200, at *8 (W.D. Wash. Oct. 7, 2014) for example, the court rejected the notion that waiver of a pet deposit was required as a matter of law, finding that whether an accommodation was necessary depended on the facts of each case.
The analysis for waiving pet rent or pet deposits as an accommodation is simple. An accommodation is necessary if without it the tenant cannot equally use and enjoy their apartment. If everyone else pays a pet deposit then for the disabled tenant to pay a pet deposit is equality, not discrimination. Saying that an assistance animal is not a pet is just word play – the landlord can call it an animal deposit and the argument disappears. In addition, HUD admits the tenant is required to pay for damage caused by the animal, which is what a pet deposit and pet rent are supposed to cover. If the tenant has to pay for damage why not require the tenant to pay a deposit to cover future damage? A tenant with an assistance or service animal may as a matter of fact need an accommodation with respect to pet fees, but that cannot be said to be universally true.
It isn’t clear what rationale HUD has for its position. Perhaps since 66% of American households include a pet(4) this just reflects the fact that a majority of HUD’s regulators are pet lovers and can’t imagine why landlords want a deposit in the first place. It is almost certain that no one involved in the various non-binding guidances published by HUD has any experience with the costs landlords incur when badly behaved pets ruin carpets and sheet rock or with the practical reality that a landlord simply cannot recover losses from a tenant who has already moved out because renters are generally transient and rarely possessed of substantial assets that are subject to execution.
Most important though, HUD cannot seem to grasp the fact that treating those with disabilities as if they are, by definition, incapable of paying pet fees that those without disabilities routinely pay, is the worst kind of insult. Those with disabilities may need accommodations directly related to their disability, but they do not need to be treated like helpless children who are unable to manage ordinary financial obligations like pet rent and pet deposits. Treating those with disabilities as equals means starting with the assumption that they are equal in every respect except their specific disability. The “no pet fee” rule does exactly the opposite.
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¹ The latest formal statement in found in FHEO 2020-1, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.”
² See, Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (“Joint Statement”), Q and A 11 (May 17, 2004),
³ See my blog: Unconventional wisdom concerning pet deposits under the Fair Housing Act.
(4) See, Forbes, Pet Ownership Statistics and Facts in 2023.
Janus, the two headed god that looked to the future and past and gave us the name for January, wouldn’t find much new in the world of disability law if he were contemplating 2023. Cases from the last few weeks look pretty much like cases from the end of 2021 and the end of 2020. Serial ADA litigation is going strong because outcomes depend on the judge assigned rather than the law or the facts. Sober living homes continue to create hostility and litigation as politicians try to balance doing the right thing against the demand of their constituents that they do the wrong thing. And, of course, the cost of victory is often much higher than the value of what the plaintiff or defendant wins. Here’s a roundup of the latest cases.
Speaking of two faced, or two-headed animals, in The Story of Doctor Doolittle the pushmi-pullyu is an animal (a llama it appears) with two heads and no rear that can only go in the direction one head faces if the other head backs up. Because the accommodation provisions of the FHA require preferential treatment to create equality of opportunity pushmi pullyu situations are not unusual. One tenant’s emotional support animal may be an annoyance to the neighbor with allergies, for example. Accessible parking creates exactly this kind of problem, as shown in Hume v. Guardian Mgt. LLC, 2022 WL 17834397 (D. Or. Dec. 21, 2022). An accessible parking space necessarily takes almost two ordinary parking spaces because of the required access aisle. If an apartment building does not have sufficient covered parking for all tenants, and has already allocated accessible spaces to other tenants, creating a new accessible space will come at the expense of the two tenants who already occupy the required spaces or at the expense of another disabled tenant whose accessible parking space is taken away from them. In this case the Court found the requested accommodation was not reasonable because taking away an existing tenant’s parking space was an undue burden on the landlord. If that seems like an easy conclusion remember that many accommodations have some negative impact on other tenants and while the FHA requires that housing providers make accommodations, it doesn’t require other tenants to do so. For more about this you can read my blog 
HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.
Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.