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.
There was still an opportunity to fix the problem. Possibly realizing she had made a mistake the manager referred the request to a lawyer, who did the right thing by beginning to give the tenant a chance to show the accommodation was necessary, but did the wrong thing by insisting the apartments reserved the right to charge a pet deposit. I’ve written about whether the FHA absolutely precludes a pet deposit for service and support animals (“Unconventional Wisdom Concerning Pet Deposits Under the Fair Housing Act“) and some courts agree that charging a pet deposit for a support animal is not a per se violation of the FHA. However, HUD takes the position that a pet deposit can never be charged, which means that unless you are just spoiling for a fight against HUD and the DOJ, you have to waive the pet deposit.
The third mistake was the one that finally lead to a complaint being filed. After obtaining a letter from the tenant’s doctor confirming her disability and need for the animal, obtaining answers to 21 questions about the animal itself, and obtaining additional confirming materials, the lawyer notified the tenant that the accommodation request was denied because she had failed to provide sufficient documentation. The complaint does not indicate the tenant was told just what documentation was lacking or what was wrong with what she had already provided. Although the landlord had already cancelled the lease, the tenant tried one more time by having her doctor send another letter with his prescription for the animal and an invitation to discuss the matter. The landlord never responded.
There is certainly another side to this story, but if the landlord and its lawyer really failed to tell the tenant why they were demanding more documentation and refused to respond to the doctor’s last letter it is no wonder HUD issued a charge of discrimination. Landlords must eventually draw a line on requests like this because the interactive process can’t go on forever. However, when the line is drawn it needs to be with an explanation of what information was missing or why the information given was not adequate. The last letter to the tenant or prospective tenant should be written as the first response to the likely HUD complaint.
With this charge coming just after the First Circuit’s decision in Castillo Condo. Ass’n v. U.S. Dep’t of Hous. & Urban Dev., 2016 WL 1732499 (1st Cir. May 2, 2016) we’ve decided to re-offer our webinar “Understanding Reasonable Accommodation.” It will be presented on Tuesday, May 24, 2016 at noon Central Standard Time. This webinar explains what reasonable accommodation means, how the interactive process works, dealing with telephone requests for accommodation from prospective tenants and properly handling requests for emotional support animals supported by dubious letters purchased on the internet. Simply go to our Education for Business page to register.