*FAS = FUNDAMENTALLY ALTER the nature of SERVICES provided

Why has no one been able to turn down ESA requests based on the wording of the actual FHA law?

From the FHAA Federal Housing Authority:

[Landlords are required to accept ESA requests] unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services.

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Granted this does not apply to the majority of situations, but for a small percentage it should!

Ok, so lets say a landlord had a building that was specifically marketed towards tenants who have allergies. When they bought the building, during renovations they tore out carpeting, hepa vacuumed as much trace of any previous pets in buildings, removed and replaced subfloor where needed, ran hepa filters, painted walls, etc etc. Maybe even hired allergy consultants to measure allergens. The end result is lower rates of pet dander and allergens in the buildings.

Surely they could market this as a "reduced allergen" apartment (or in case of new construction actually claim "no pets have ever lived here") and there would be a solid niche market of folks who suffer from allergies who would love to live in a unit like that!

Now since the landlord had undertaken renovations to create a low allergen place to live, marketed their building as such - being forced into accepting an ESA would "fundamentally alter the nature of the services provided" and thus allow them to legally decline the request!

Why has no one tried this, surely there must be a few buildings in this situation!!

You would need proof (pics) of renovations, of marketing to "reduced allergen living", and possibly letters from any tenants & their doctors stating that said tenants indeed impacted by allergies and that is one of the big reasons they chose to live their.

This is getting ridiculous that everyone is being held hostage by these standards that don't take into account how it affects everyone involved. Legally speaking, is this a solid defense? Why or why not?

I'm not sure, but I think you would create an issue targeting people looking for allergen free homes.

Why has no one tried it? Because the fight isn't worth it.

I allow pets, so creating an allergen free space costing me tens of thousands of dollars would also mean I can no longer collect pet rents and pet fees.

There are much easier ways to handle it. I had a tenant pull out her ESA letter for me as I unlocked the front door on lease signing day. Up until then, she NEVER said a word about it. Felt like I got sucker punched. So rather than freak out or get all upset, I simply altered my applications.

"Will there be any animals in the residence? Yes/No.

If she had circled "No" on that, then tried the same stunt, I could deny her application for falsifying information and tear up the lease right in front of her. She MUST disclose that she has an ESA on the application.

bet: You brought that up in another thread, I think, and I replied to it there too. People need to be very careful about following bet's advice. HUD has already made it pretty clear that it is NOT acceptable to deny a Service Animal or ESA based on the dog being on a restricted breeds list from an insurance company. Doing so absolutely can get you into legal trouble.

The HUD guideance is that the INDIVIDUAL DOG be evaluated -- not the BREED. Therefore, to deny based on your insurance, you would want a letter from your insurance company stating that they evaluated THAT DOG along with a statement that if you accept THAT DOG they will cancel or significantly increase the cost of your insurance.

So far, I can't find a single instance where an insurance company has actually issued that statement.

I hope people be very, very careful before taking some of the "I denied an ESA because my insurance has a dangerous breeds list" advice that I've seen repeated many times here. HUD does NOT agree.

- John...

"People need to be very careful about following bet's advice. HUD has already made it pretty clear that it is NOT acceptable to deny a Service Animal or ESA based on the dog being on a restricted breeds list from an insurance company. Doing so absolutely can get you into legal trouble."

But realistically the applicant is just going to go away if you tell them "no" based on the insurance. How many of them are actually going and filing claims with HUD?

It's an interesting concept, allergy free housing, esa free housing. I suspect the question would be answered with a test case. I work really hard to avoid being the one involved in the test case.

Legally, I don't see any issue with a building that only rents to allergy sufferers. It's legal to offer handicapped housing. It might keep out ESAs, it might not, but you'd be dealing with a whole building full of allergy sufferers?

Very good conversation. It sounds like a few have done it. I wonder where HUD would come down on this?

What I'm saying is the law was written with that specific verbiage for a reason. All I'm advocating is we should use the actual wording of the law to backup our position, which then opens the door to be able to deny ESA requests without worrying about whether it was improper.

Yes, this is legitimately only for the landlord who takes care of their buildings to a higher standard as far as allergens are concerned. The demand for this is actually higher than you might think - allergy sufferers have it tough. I have had a lot of people say they appreciated our building compared to their last place.

However, notice I never said "Allergen free"! I get that allergen free is setting yourself up for too many issues on the other side of the spectrum. You're not trying to offer perfect housing here, just housing that would be better for allergy sufferers.

In theory all it should take is to claim what you're offering is "low allergen" or "reduced allergen housing". Much different than allergen free, but yet still has a segmented market of people that would seek your housing out (and stay!!). I think this would be worthwhile for those of us who would like to cater our buildings to folks who have issues with pet dander & allergens (and thus will own no pets or be very unlikely to be "watching it for their sister").

To me, this seems like a much clearer use of the law than the insurance company loophole, which as John as already pointed out might be sketchy if it comes down to it. Likewise, if you get an ESA tenant and try to boost rent on them later (but not the other tenants), my read on the law is a risky move as well.

J: You only need ONE of them to follow up with their free HUD lawsuit. Do you really want that risk? I guess it is up to each of us to decide. I'd rather follow the law than ignore it hoping that no one reports it.

plenty: Yes, he has a valid point, but ONLY if the insurance carrier will say that they will cancel it over that specific dog that they have checked out. You can't use the blanket "dangerous breeds" like to say no to ESAs. That was all that I was saying. (And, again, as far as I know, I've never found a single instance of an insurance company giving that in writing -- because they don't want to get sued either.)

- John...

As far as "fundamental alteration" goes, we may actually get some more insight into this soon.

A group of people are suing Walt Disney Parks. They have "severely autistic" individuals and they are arguing that they basically can't wait in line. They are arguing that Disney needs to find a way to "reasonably accommodate" this "disability."

Note that Disney already has a plan in place to accommodate people so that they don't have to wait in line. However, they still have to WAIT. So, Disney has actually previously made what they thought were reasonable accommodations for them. This case, however, is arguing that the "extremely autistic" individuals cannot even do that -- they can't "wait" even if it isn't "in line." Therefore, they feel that Disney is not accommodating them properly and somehow needs to accommodate their inability to delay gratification. (Which some would argue is what Disney Parks are "fundamentally" about -- it's all about waiting to ride a ride or see a show.)

It's going to be a very interesting case when it comes to the ADA. I think the "fundamental alteration" portion may really come into play -- and I look forward to seeing how it all turns out.

- John...

"J: You only need ONE of them to follow up with their free HUD lawsuit. Do you really want that risk? I guess it is up to each of us to decide. I'd rather follow the law than ignore it hoping that no one reports it."

Well you know they are getting the runaround from other landlords about the animal, not just from us--do you think one individual who is apartment shopping is filing multiple complaints with HUD against different landlords? I kind of doubt it.

I would just like to hear some statistics about how often these suits actually come about and what the outcome is. I have a feeling the fear is overblown.

The insurance company may label certain breeds of dogs as “dangerous” in the policy. Each reasonable accommodation determination must be made on a case-by-case basis. An accommodation is considered unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations.

If a housing provider’s insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the housing provider.

" The HUD guideance is that the INDIVIDUAL DOG be evaluated -- not the BREED. Therefore, to deny based on your insurance, you would want a letter from your insurance company stating that they evaluated THAT DOG along with a statement that if you accept THAT DOG they will cancel or significantly increase the cost of your insurance.

So far, I can't find a single instance where an insurance company has actually issued that statement."

Landlord ofthe Flies: If you read what NC INVESTOR posted -- which is the HUD text that I was referring to -- you'll see that HUD has explicitly stated that "an investigation may be launched against the insurance company for potential disability discrimination" for those denial letters.

So, I'm really not sure there is "good money in that" when HUD has basically said "Hey Insurance Companies! Just TRY issuing that letter! We'll see you in court!"

:)

- John...

Hi Folks,

I have a a two family with a shared HOT AIR heat & AC. Two of the kids upstairs have pretty severe allergies, one has the dangerous food kind too in addition to animals.

The lower unit is now for rent, of course I advertised as "no pets", but if someone claims to have or want a esa, can I tell them no dice because of the kids upstairs? Or do I tell them sure no problem, you'll just have to make alterations (on your own dime) to split the heating and ac, like if they needed to put in a ramp or widen doorways. Because there is no way the kids upstairs could handle having an animal that triggers their allergies where they live.

And yes, the family of the kids have plenty of documentation of their severe allergies.

They likely need more than "documentation" of their "severe allergies." They'd probably need a doctor stating that their allergies are so bad that it qualifies as a "disability." That's pretty rare. Lots of people like to go "yeah, I'm allergic to dogs." That generally doesn't cut it.

HUD has given some guidance on this. From my understanding, they've basically indicated that most accommodations can be made to make it work in the same building. You might need to offer to move some people around to another unit, for example. Or you might need to add pet-dander-quality filters to the air system. That sort of thing.

Note that many of those accommodations are on YOUR dime, not theirs. If it is a big expensive thing then, yes, it falls on them. But if it is air filters and other such things, that will likely be seen as a reasonable accommodation that is not a "financial burden" to you.

- John...

Thank you John for replying.

I just have a 2 family, so no options to move someone. Can you imagine something like a "pet dander filter" really working", I can't. I'd hate to have someone move in with a pet and it not work out because of the allergies, because then who moves? I've seen the reactions this kid has due to visiting someones house that had an animal, he has to be given medication asap to get control of it. Visiting a place is one thing, having it in your own home that has a shared hot air system is another, he would have to be medicated daily due to someones selfishness, makes my blood boil.

Wanda, ask the upper to get a letter from the dr documented his severe allergy to animals. If he is anaphylactic, the Dr can state that.

Wanda: You seem to be making the assumption that all people with ESAs are faking them when you call it "someones selfishness." I'm not sure that is fair.

To add context, let's say the person that applies is blind with a seeing-eye Service Animal. Would you still call them "selfish" for wanting you to follow the law regarding Service Animals? Is it their fault that someone else has a dog allergy?

As Barb said, if the person really has that severe of an allergy, then get it properly documented and it would probably be ruled NOT a "reasonable accommodation" to have a dog move into the same building. The problem is that SO MANY of these "well, I have another tenant with an allergy" situations are not to the degree that you are describing. Most of THEM are being "selfish" and just using it as an excuse to not take a Service or Emotional Support Animal.

Most of what I hear on this forum come from people taking that angle -- just saying "well, I'm allergic to dogs, so I don't have to take them" without really having anything nearly as severe as what you're describing. It's a common excuse to try to get around the law.

- John...

John your last sentence is the dinger: " It's a common excuse to try to get around the law."

So, if 90% of people are cheating -- then you admit that 10% are legit? Because that is why we need to pay attention.

Also, "tit for tat" doesn't work. Unfortunately, if THEY are caught faking an ESA, that isn't even illegal in most states! But if WE get caught disallowing an ESA (especially with the easily obtained paperwork for the "fakers"), then we've violated federal law!

So, now, it is not "too bad for them" -- it becomes "VERY BAD for US" very quickly.

Your attitude of "well screw them, most of them are fakers anyway" doesn't help at all in court. We're the ones violating federal law in the eyes of that court, sorry.

- John...