ADA and FHA Defense

I’ve written quite a few times in the last decade about the absurdity of HUD’s position that landlords cannot charge a fee or deposit for an assistance or emotional support animal.¹ HUD’s position has never made sense because asking for the waiver of a fee or deposit is just another kind of accommodation claim that must be supported by a showing of a disability related need. I wrote those blogs before the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) making it clear that interpreting statutes and the constitution is the business of the courts, not regulatory agencies.  Before Loper Bright many courts deferred to statements by HUD as if they were binding or at least persuasive.  Loper Bright made it clear that the non-regulatory statements like HUD’s various guidances on accommodation requests are entitled to respect only if they have the power to persuade.

On July 16, 2025 Judge Sarah Vance of the Eastern District of Louisiana considered whether HUD’s 2020 Notice concerning accommodations, and in particular pet fees met that standard² in Henderson v. Five Properties, LLC, Case No. 2:24-cv-00750 (July 16, 2025). (4) HUD’s approach to fees in the 2020 Notice is that they are not appropriate in any instance, no matter how reasonable or proportional and regardless of the circumstances of the requesting party. As authority HUD cited a 2004 Joint Statement on Reasonable Accommodations that discussed “extra fees and deposits” that might be charged for an accommodation. Judge Vance notes that this 2004 document does not explain or provide authority for its statement. She notes:

“The Joint Statement is unpersuasive . . . because its consideration is not thorough, and it presents no reasoning to evaluate.”

Moving from the 2004 Joint Statement to the 2020 Notice, Judge Vance notes that in the 2020 Notice HUD claims the 2004 Joint Statement is persuasive because later courts relied on it. However, the cases HUD cites in the 2020 Notice are not cases about pet fees, so they really prove nothing. A third case that mentioned the 2004 Joint Statement was not persuasive because it did not rely on the 2004 Joint Statement, concerned a different issue, and ultimately found only that there was a unresolved fact question about the specific case. Judge Vance also rejected other arguments that supposedly supported the 2004 Joint Statement. Her conclusion was that the 2020 Notice’s interpretations of the Fair Housing Act “do not contain the power to persuade.” Rejecting any absolute rule, Judge Vance found that whether waiver of an animal fee or deposit was required depended on a “fact specific . . . case by case determination.”

At this point Judge Vance’s decision had reached the important conclusion that HUD’s 2020 Notice can safely be disregarded by a court looking at an animal or pet fee. That still leaves the question of what a plaintiff must prove to be entitled to waiver of an animal or pet fee. Judge Vance’s opinion is helpful on this as well. She finds that a plaintiff must prove that the requested accommodation is “is indispensable and essential to achieve ameliorative effects of her disability.”³ The plaintiff admitted that she could afford the fee if she was allowed to pay in installments, something the landlord had already offered. If she could afford it then waiver of the fee was not at obstacle to keeping her dog, and was therefore not indispensable and essential. For landlords this provides an easy to apply test because most landlords require information about financial ability to pay rent. A tenant who can afford the rent can probably afford a one time fee and can almost certainly afford the fee when it is broken into installments.

On its face Judge Vance’s opinion  applies only to the specific guidance on pet fees contained in the 2020 Notice, but her application of Loper Bright means the opinion has importance beyond pet fees. It is fair to say that HUD’s 2020 Notice, like many of HUD’s other guidance documents, was issued based more on what HUD would have liked to be the law than any analysis of either the law or the science concerning assistance animals. The simple question –  “is there any support for HUD’s position that would make it persuasive” – will only rarely be answered “yes.” Loper Bright’s message that the courts are not obliged to follow unsupported HUD guidances is one that will almost always help landlords and other housing providers in dealing wiht animal accommodation requests.

If you want to know more about emotional support animals and the Fair Housing Act and other federal laws mark your calendar for October 8, 2025 at 2:00 p.m. eastern time when I’m presenting a one hour webinar, “Fact, Fantasy and Fraud, Emotional Support Animals under the Fair Housing Act.” Details will be announced as the date approaches.

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¹ See, “Unconventional Wisdom” from 2014, “Good News” from 2017, and  Georgia Court of Appeals from 2023.

² The guidance in question is HUD’s “Notice of Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation under the Fair Housing Act,” FHEO 2020-01, (January 28, 2020).  I wrote about this document in “HUD’s new Guidance on assistance animals will encourage emotional support animal fraud” a prediction that has proven true.

³ That standard was adopted by the Fifth Circuit in Women’s Elevated Sober Living L.L.C. v. City of Plano, Texas, 86 F.4th 1108, 1112 (5th Cir. 2023).

(4) In the interest of full disclosure I have an interest in this decision and the lawsuit because the “attorney” referred to on page 3 of the Opinion was me.