Yesterday, the U.S. Court of Appeals for the First Circuit (which covers Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico) issued a Fair Housing Act (FHA) opinion concerning emotional support animals and the standards HUD (and courts) should use when evaluating requests for service/emotional support animals. Much of the opinion concerning the law is textbook and follows the advice I provide to my clients. Which is always good and helpful.
The case had a long factual history. Twice, however, decisions of a HUD Administrative Law Judge (ALJ) in favor of the property owner (first with respect to if the resident was disabled and qualified for an emotional support animal and second with respect to the appropriate amount of damages suffered by the resident) were reversed during two administrative appeals by HUD’s Secretary. On further appeal, the First Circuit decided the final decision of HUD’s Secretary had appropriate support in the record and should be enforced. Again, HUD went against management both times.
The takeaway for leasing offices? Even in a case where an ALJ did not find that the resident was disabled, HUD disagreed. And then when the ALJ came up with a dollar amount for the appropriate monetary sanction, HUD disagreed. While each service/emotional support animal case must be evaluated on its own merits, professional apartment management employees need to be aware that our business partner (HUD) will most likely err on the side on the resident with respect to medical verifications, testimony, and claims of recognized disabilities. Does that mean we should simply approve everything? Of course not. But, leasing offices need to ensure when we raise what we believe to be an appropriate challenge to a reasonable accommodation request, management must have the factual basis to back it up. Or you will really need to speak with a lawyer like me.