No-cost ESA is no longer valid. I'm no lawyer but this is a great precedent and a sign of more positive things to come. Thoughts?

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w w w dot jdsupra dot c o m/legalnews/landlord-scores-major-ruling-in-2331269/

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.

Thank you, Larry.

Finally a judge with some sense. Everyone knows Esa are all scams.

Yes, agreed with a lot of what's been said here. If momentum prevails, my take is being able to charge a reasonable rate will go a long ways to stop the abuses. Much like on the airlines, when people found out they could let their animal fly free, "well now my animal is for emotional support" became pretty popular.

And why wouldn't it?? That's why the rules on this stuff is so slippery in the first place. Once the airlines were able to get rid of that dumb rule, people stop flying with their animals and figure out "it's too expensive, we'll just have a neighbor come over or drop Rover off somewhere". In essence, go back to doing what we did for the past century!

This is great news and I hope that it continues to grow!

Personally have not had to deal with an ESA applicant. My people all pay the fees and rents to keep their animals.

Have one who keeps sneaking in pets. I am about to boot her. She tried to get a client of hers set up with ESA for a different apartment and it failed.

They have a bus/RV. Spent I think around $240k on it used.

They go 'camping' by driving maybe an hour away, parking, set the awning, sat dish and hook up to the utilities provided there.

Thing is they currently own 14 acres of woods that they live in the middle of. But they drive a short distance to spend the weekend camping while looking at the same exact scenery they have at home. They don't go hiking or nature watching. They just sit at the RV.