dojOn July 1 the Department of Justice announced the filing of another lawsuit challenging what it calls discrimination based on the refusal to allow a therapy animal without a pet deposit. U.S. v Barber, 3:13-05539 (W.D. Wash). Coming on the heels of HUD’s April 25 “Notice Concerning Service Animals and Assistance Animal” the lawsuit is another reminder that this particular FHA violation is of special interest to the government regulatory agencies. It also suggests that apartment owners and managers need to tread carefully and think clearly about how they approach requests for assistance animals. After all, there is no animal more dangerous than a lawyer with a plausible claim.

In Barber, assuming the allegations in the complaint are true, the landlords’ policies seem designed to discourage anyone with a disability from owning an animal. Every animal, including those for disabilities, required a pet deposit of $1000. In addition, the landlord required that tenant have his or her doctor fill out a form that required more information than the law allows and included an all caps bold threat to take the doctor to court. HUD’s guidelines do not allow a deposit for assistance animals, and the doctor’s form was a fairly obvious attempt at intimidation.

What can a landlord do when it faces a flood of assistance animal requests that do not seem legitimate? HUD and the DOJ interpret the Fair Housing Act to forbid discrimination against anyone with a disability who needs an assistance animal. This, along with an expansive notion of what constitutes a disability, leads to the situation described in the lawsuit: a tenant with a mental disability wants to keep an animal that appears to little more than a pet, but doesn’t want to pay a pet deposit. A review of cases over the last several years suggests that without going overboard like the defendants in Barber a landlord can nonetheless protect itself from illegitimate claims.

A landlord’s first question is likely to be whether there is really a disability. For mental health disabilities, which are frequently not obvious, HUD advises that:

Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal.

Many kinds of mental impairment have a range of severity, and the less severe cases may not “substantially limit a major life activity,” one of the requirements for an impairment to qualify as a disability. Depression, which seems to be the most common mental condition alleged in FHA cases, is one of these disorders. Courts have long held that because depression does not necessarily “substantially limit a major life activity” it is not necessarily a disability. See, Pritchard v. The Southern Company Services, 92 F.3d 1130, 1132 (11th Cir. 1996) and Blue v. Federal Express Corp., 66 Fed.Appx. 542 (6th Cir. 2003). Even under HUD guidelines it appears reasonable for a landlord to ask for documentation not only that the tenant has been diagnosed with depression, but that the depression is such that it substantially limits a major life activity. A diagnosis of major depression, major depressive disorder or clinical depression alone will likely meet this requirement, but a diagnosis of “depression,” even when accompanied by treatment, may not.

A second question that even HUD admits a landlord may ask is whether there is a “disability-related need for an assistance animal.” While the DOJ complaint in Barber refers in broad terms to an assistance animal ameliorating the effects of the plaintiff’s depression, it seems reasonable that “need” be associated with the effect of a disability on the major life activities it limits. For example, the major life activity associated with depression may be the ability to work. A therapy animal in an apartment doesn’t have any clear effect on the ability of a person to work away from the apartment, and there may be no “disability-related need” for the animal.  For a tenant with multiple conditions, which seems to be the norm, a therapy animal for a condition that is not a disability cannot be “disability related.”  Similarly, while episodic depression or depression controlled by medication can be a disability under the expanded definition of disability under the ADAAA, it seems unlikely that there is a “need” for a therapy animal if depression is already adequately controlled by medication. A landlord should be able to ask both whether a mental impairment substantially limits a major life activity and whether the assistance animal assists with that limitation.

It is also worth carefully considering just what kind of accommodation a therapy animal represents. For multi-family housing with a “no pets” policy the accommodation is allowing an animal. For apartments that require a pet deposit, the accommodation is waiving the pet deposit. Unlike ADA “service animals,” assistance animals under the FHA do not require special training, including the special training that “service animals” have with respect to urination and defecation. HUD and the DOJ both assert that no deposit can be required for an assistance animal even though the tenant will ultimately be financially responsible for any damage the animal causes. In Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2nd 1028 (D.N.D. 2011) a district court discussed the problems of pet deposits vis a vis assistance animals and concluded that whether a policy of requiring deposits runs afoul of the reasonable accommodation requirement presents a fact issue in most cases. The landlord could not escape on summary judgment because it did not have evidence justifying its policy. This indicates that the HUD/DOJ absolute “no deposit” position may not stand up in court, but also requires that landlords think carefully about the need for a deposit. For example, there may be no justification for requiring a deposit from a tenant with good credit since that tenant is likely to be responsible for damage caused by the animal. A tenant with limited financial means presents a greater risk. The type of animal matters as well – a bird probably presents less risk than a dog. Any policy on deposits for assistance animals needs to take these differences into account without, however, merely relying on stereotypes about the size or type of animal.

A final consideration is whether the risk of litigation outweighs the benefits of a restrictive policy. The legal fees involved in an FHA lawsuit, or even in participating in an HUD complaint and conciliation proceeding may be greater than any possible amount of property damage even when the landlord wins. A well crafted policy will be a litigation deterrent, but strict enforcement of the letter of law is likely to be a litigation magnet.