This blog and the next were prompted by two recent efforts by state officials to deal with the problem of emotional support animals. One was a decision from the Iowa Supreme Court that puts a state law overlay on how to deal with conflicts between disabled and non-disabled tenants. You can find the details in William Goren’s blog.¹ The other was a recent legislative effort in Florida, the passage of Senate Bill 1084, which adds specific anti-discrimination provisions for emotional support animals.² These are far from the first efforts at the state level to do something about animals and disabilities,³ but they illustrate the problems these laws create for landlords trying to deal with fake emotional support animal requests.(4) More
FHA Emotional Support Animals
Time to learn more about HUD’s new animal accommodation guidance
On April 14 at 2:00 p.m. CST I’ll be presenting a one hour webinar on HUD’s January 2020 guidance on reasonable accommodations for animals. I’ll cover what HUD got right and wrong in this guidance and explain what housing providers need to know about the reasonable accommodation process in light of the guidance. Written materials include modified decision tree for accommodation requests.
The course is sponsored by the University of Texas School of Law and is approved for CLE credit. If you are interested in registering, this link will take you to the registration page:
Register for Webcast: HUD’s New Guidance on Assistance Animals
HUD’s new Guidance on assistance animals will encourage emotional support animal fraud.
On January 28, 2020 HUD issued its “Guidance on Reasonable Accommodations under the Fair Housing Act Relating to Assistance Animals.”† Over the course of 19 poorly written and poorly organized pages HUD provides one crumb of help for housing providers faced with bogus requests for emotional support animals. The bulk of the “Guidance” is a confused repetition of various earlier HUD positions that defy common sense and the law.
What’s useful.
For landlords the most important part of this Guidance is HUD’s acknowledgement that letters purchased on the internet are not reliable evidence of a disability or a disability related need for an emotional support animal. We’ve known this for years, but it’s nice that the bureaucrats have finally recognized it as well. However, this means almost nothing as I’ll discuss below. More
ADA and FHA Quick Hits – hodgepodge edition.
A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.
FHA disability claims – get it right the first time.
In Root v. Salazar, 2019 WL 4040405 (M.D. Fla. Aug. 27, 2019) made a critical mistake. Having in hand a legitimate non-discriminatory reason to refuse to rent he instead made an excuse that probably seemed more legitimate but wasn’t. The legitimate excuse was the tenant’s lack of steady income. The FHA does not require that landlords take financial risks to accommodate disabled tenants. The illegitimate excuse was that the duplex in question did not meet the FHA’s accessibility guidelines. A fundamental principle under the FHA, ADA and other similar disability laws is that the tenant gets to decide what he or she needs. It may seem helpful to tell a prospective tenant why they should rent elsewhere, but if the tenant is disabled or a member of a protected class that helpfulness will look like illegal discrimination. More
Auer deference and the Fair Housing Act – does Kisor change anything?
Just last week the Supreme Court took a long hard look at something called “Auer deference” and decided that it would remain the law, but with some strings attached. Kisor v Wilke, No. 18-15 (June 26, 2019). I’ve never once had the occasion to mention Auer deference in this blog or in any brief I’ve filed in disability lawsuits, but the decision could have an impact on future disability rights litigation. In this blog I’ll consider the possible impact on litigation under the Fair Housing Act. In the next I’ll look at what turns out to be the more complex possible effects on litigation under Titles II and III of the ADA. Before I explain why, I should refer anyone interested in a detailed analysis of the decision to William Goren’s blog on the subject here.* More