The Big Picture
In Michaela Henderson v. Five Properties LLC and Suzzane Tonti, the U.S. District Court of the Eastern District of Louisiana addressed whether refusal to waive an animal fee for an emotional support animal constituted a denial of a reasonable accommodation, which is prohibited under the Fair Housing Amendments Act and the Louisiana Equal Housing Opportunity Act. The court found that the refusal to grant the waiver did not constitute a violation of either act.
Background
In 2022, Michaela Henderson (the resident) applied to lease an apartment owned by Five Properties, LLC and managed by Suzzanne Tonti. The resident disclosed that she owned a dog and was instructed to pay an animal fee of $350. The resident complied and paid the fee. In November 2023, the resident applied to a different apartment complex that was also owned and managed by the above parties. This time, however, she requested that the animal fee, in the amount of $400, be waived because her dog was now classified as an emotional support animal and she was diagnosed with a disability that required her to be accompanied by an emotional support animal.
After reviewing the documentation submitted by the resident, the property manager denied the waiver request due to insufficient evidence demonstrating that the resident was unable to equally enjoy use of the apartment as other residents do, without waiving the animal fee. The resident also did not present any evidence of having a financial need for requesting the fee waiver. As an alternative, the property manager offered the resident the option of a payment plan to pay the animal fee over time, but she refused.
In January 2024, the resident canceled her rental application for the new apartment and sued the property owner and the property manager, claiming that they violated the Fair Housing Amendments Act and the Louisiana Equal Housing Opportunity Act by not waiving her animal fee, arguing it should be considered a reasonable accommodation.
The Prevailing Statutes
Both the Fair Housing Amendments Act (FHAA) and the Louisiana Equal Housing Opportunity Act prohibit discrimination against buyers or renters with disabilities. Property sellers and housing providers may not make a property unavailable or deny access to the property based on a person’s disability. In both statutes, discrimination is defined as “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”
Necessity and Reasonableness Factors
To determine if either statute had been violated, the courts found that the person asserting the violation must prove four elements to prevail. The four elements are:
- The residents of the affected dwelling or home suffer from a disability;
- They requested an accommodation from the defendant;
- The requested accommodation was reasonable; and
- The requested accommodation was necessary to afford the residents equal opportunity to use and enjoy the home.
The court determined that the resident met the first two elements by providing her disability documentation and requesting an animal fee waiver; however, the court had to evaluate the third and fourth elements.
To determine the third element of whether the accommodation was reasonable, the court considered factors including the fee amount, its relation to overall housing costs, how many residents paid it, the fee’s significance to the housing provider’s revenue, and the importance of a waiver for the disabled resident. The resident’s fee was a one-time fee of $400, which was a very small percentage of the overall housing costs. Henderson did not provide any evidence regarding how many other residents had to pay the animal fee, how collecting the animal fee would benefit the property owner’s revenue or the importance of her receiving the fee waiver. Thus, the court found that the third element was not met.
The court found that the fourth element was also not established, as the resident failed to provide evidence demonstrating that waiving the animal fee was necessary and that there was no other alternative available for her to enjoy her home, as much as the non-disabled residents. The resident argued that waiving the animal fee was necessary because of her disability requiring that she be accompanied by an emotional support animal. Neither the property owner nor the property manager refused to allow the emotional support animal to accompany the resident; however, both insisted that Henderson pay the same animal fee as all of the other residents. They even offered Henderson a payment plan to assist with the amount of the animal fee so that she could enjoy the use of the property, just as every other resident.
No Agency Deference
The resident in this case relied on the U.S. Department of Housing and Urban Development’s (HUD) Notice on Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (HUD Notice). The HUD Notice cites HUD and the Department of Justice’s Joint Statement on Reasonable Accommodations Under the Fair Housing Act (Joint Statement). The HUD Notice “suggests that fees are disfavored in every instance, regardless of how reasonable or proportional the fee may be or of the circumstances of the person with a disability.”
However, considering the 2024 ruling in Loper Bright, the court refused to give deference to the agency’s interpretation, finding both the HUD Notice and the Joint Statement unpersuasive.
The court found the HUD Notice unpersuasive because the cited authorities, the case law and the Joint Statement, were unconvincing. In addition, “HUD stated that it ‘does not intend to imply that the Joint Statement is independently binding statutory or regulatory authority.” The court found the cases cited in the HUD Notice unpersuasive in establishing the point at issue. The court found that the Joint Statement was to be given respect only to the extent that it had the power to persuade (this deference is known as Skidmore deference). The court did not find the Joint Statement persuasive because it lacked thorough consideration and presented “no reasoning to evaluate.”
The court concluded that HUD Notice’s “interpretations [did] not contain the power to persuade and [did] not alter the Court’s necessity or reasonableness analysis.”
Conclusion
The court found that the resident did not prove that the property owner or manager violated the Fair Housing Amendments Act or the Louisiana Equal Housing Opportunity Act. The fees imposed by the property manager were applied to every resident and did not cause any unequal impact to disabled residents. The court also recognized that cases involving general fees that are applied to all residents will be determined on a case-by-case basis. The court also made it clear that it was “not holding that animal fees can always be enforced against someone with an ESA, or even that this animal fee can be enforced against every resident;” what the court did find was that the resident failed to establish a “genuine issue of material fact as to whether the waiver of the fee was necessary and reasonable.”
NAA’s Outlook
In light of this case, Louisiana housing providers should review their accommodation policies to make sure such policies allow for case-by-case review of fee waiver requests, considering whether the applicant or resident has demonstrated the reasonableness and necessity for waiving the fee. While this ruling is the first of its kind for the rental housing industry and represents a significant win for Louisiana housing providers, the prevalence of fraudulent reasonable accommodation requests for assistance animals—including emotional support animals—remains a concern for apartment owners and operators. The National Apartment Association (NAA) has developed industry resources to help its members better understand their fair housing-related responsibilities. NAA recommends its Emotional Support Animal Toolkit.
NAA strongly supports the rights of persons with disabilities to make reasonable accommodation requests so they may have equal opportunity to use and enjoy a dwelling. NAA continues its federal advocacy efforts and urges HUD to revise its regulations regarding emotional support animals. NAA urges HUD to take steps to mitigate potential abuse and ensure that the benefit of a reasonable accommodation applies to only those who legitimately need it.