MAJOR VICTORY FOR LANDLORDS IN EMOTIONAL SUPPORT ANIMAL CASE Are you an apartment owner or landlord who has received a pet fee waiver request due to a claim regarding an emotional support animal (ESA), and you felt obliged to grant it, no questions asked? Well, not so fast. In a recent landmark victory for a housing provider in Henderson v. Five Properties LLC, U.S. Eastern District of Louisiana Judge Sarah Vance held that a tenant with an ESA seeking to have her landlord waive a generally applicable animal fee was required to prove that the waiver was necessary for her to use and enjoy her home. In other words, the landlord did not have to automatically waive the animal fee for a tenant with an ESA under the Fair Housing Act (FHA).
This is the first decision in the country to squarely address this issue of importance to housing providers who are subject to the FHA, and it rejects the notion that guidance issued by the U.S. Department of Housing and Urban Development (HUD) always requires housing providers to waive pet fees for people with ESAs. For years, guidance from HUD, the Department of Justice (DOJ), and others have maintained that housing providers must waive fees whenever someone claims they are disabled and need a service or assistance animal. Period. Though not actually the law, this idea was perpetuated
through Internet websites that have profited from promoting the sale of ESA prescriptions by advertising that purchasers may save money by avoiding animal fees. This federal court ruling clarifies that the analysis does not begin and end with the delivery of an ESA letter from a tenant to a landlord. Instead, tenants seeking fee waivers must prove they need the animal and that their request is reasonable under the circumstances. Judge Vance’s ruling provides guidance to landlords about how to assess the need for and reasonableness of waiver requests.
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