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.