Landlord Scores Major Ruling in Emotional Support Animal Fee Waiver Case

Adams & Reese recently obtained a landmark win for a housing provider, securing a ruling that it did not have to automatically waive its animal fee for a tenant with an emotional support animal (ESA) under the Fair Housing Act (FHA).

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 both necessary for her to use and enjoy her home and reasonable. In reaching her ruling, Judge Vance rejected 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.

Historically, the Chevron doctrine required courts to defer to agencies’ statutory interpretations if they were reasonable. That changed when the United States Supreme Court eliminated Chevron deference in Loper Bright Enterprises v. Raimondo. Recognizing this change in the law, Judge Vance noted that it is the role of the courts, not agencies, to interpret constitutional and statutory provisions; that agency interpretations are not law; and that agency interpretations are only entitled to respect if they have the power to persuade. Ultimately, she found the HUD Notice stating that a housing provider may not charge a fee or deposit for a service animal or other assistance animal “unpersuasive.”

Judge Vance’s opinion is the first decision in the country to squarely address this issue of importance to housing providers who are subject to the FHA.

Breaking Down the Legal Dispute

This case involved the plaintiff’s request for a reasonable accommodation under the FHA and Louisiana Equal Housing Opportunity Act (LEHOA), specifically seeking a waiver of a $400 animal fee for her dog, which she claimed was an ESA.

The defendants’ apartment complex allows animals, so there was no issue with the dog living there. The only dispute was whether the defendants had to waive the animal fee they charged all tenants for the plaintiff just because she had an ESA.

Adams & Reese attorneys argued that the FHA does not say housing providers must waive animal fees for ESAs. It only says they must make reasonable accommodations that are necessary for disabled people to use and enjoy their homes equally. The plaintiff, represented by the Louisiana Fair Housing Action Center, argued that it is always necessary to waive animal fees for people with ESAs to afford them an equal housing opportunity.

HUD and the Department of Justice (DOJ) issued a 2004 Joint Statement and HUD issued a 2020 Notice, both of which suggested, and have been interpreted to mean, that housing providers never can charge pet fees for people with ESAs. But Judge Vance found these authorities unpersuasive under Skidmore v. Swift & Co. because the cases cited within the Notice did not support HUD’s position and because the Joint Statement was not thorough and had no reasoning to evaluate.

Judge Vance rejected the argument that landlords always must waive fees for tenants with ESAs. Instead, she concluded that whether such accommodation is required is a fact-specific, case-by-case determination.

Judge Vance recognized that a fee waiver is only necessary if it is indispensable and essential to achieve ameliorative effects of the tenant’s disability. Whether a fee waiver is reasonable depends on factors such as “the amount of fees imposed, the relationship between the amount of fees and the overall housing cost, the proportion of other tenants paying such fees, the importance of the fees to the landlord’s overall revenues, and the importance of the fee waiver to the handicapped tenant.”

Ultimately, Judge Vance found the plaintiff failed to prove she needed a fee waiver because she did not put forward any evidence to demonstrate that waiving the fee would alleviate the effects of her disability and the record showed the plaintiff could afford the fee, particularly if given the option to pay in installments. Judge Vance also found the plaintiff failed to demonstrate a genuine issue of material fact as to the reasonableness of her request considering the fee was a little under 3% of the total cost of the housing, animal fees are relatively typical for leased apartment buildings in which animals are allowed, and the plaintiff failed to come forward with evidence about the importance of the animal fee to the defendants’ overall revenue.

Why This Decision Matters for Landlords

For years, HUD, the 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 by promoting the sale of ESA prescriptions by advertising that purchasers may save money by avoiding animal fees. Judge Vance’s 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 them and that their request is reasonable under the circumstances. Judge Vance’s ruling provides guidance to landlords about how to assess both the need for and the reasonableness of fee waiver requests. It also confirms that alternative accommodations, such as allowing tenants to pay over time, can be effective.

About Our Authors

Liz Roussel is a Litigation Practice Group Leader at Adams & Reese and a longtime Partner in the national law firm’s New Orleans office. Liz is ranked Band 3 in Labor & Employment Law in Louisiana by Chambers USA and she has been recognized by Best Lawyers® on multiple occasions. Liz focuses her practice on advising employers and managers of businesses and defending their interests in litigation. Liz has represented a wide variety of clients including energy and oil and gas companies, real estate owners, healthcare organizations, financial institutions, Fortune 500 companies, retailers, public entities, nonprofits, state agencies, private universities, charter schools, start-ups and technology companies, among others.

Luke LaHaye is a member of the Adams & Reese Litigation Practice Group and an attorney in the national law firm’s DC office. Luke has a diverse practice that focuses on litigation as well as regulatory and compliance counseling. In his litigation practice, he represents clients in a variety of areas, predominately commercial litigation and labor and employment. His regulatory and compliance practice spans from advising clients on customs and international trade issues to counseling financial institutions and service providers regarding compliance with federal and state consumer protection statutes and regulations.