When evaluating assistance animal requests from our residents, one of the issues faced by apartment leasing offices across the country is what to do if the animal is believed to be a “direct threat.” The law is absolutely clear that an animal (usually a dog) cannot be categorized as a “direct threat” unless there is evidence that the specific animal in question presents a legitimate danger to other residents, to property management employees, or to the property itself. To illustrate, we cannot simply deny an assistance animal because he or she is a particular breed, a particular size, or because of the animal’s weight.

Applying applicable standards concerning the “direct threat” analysis, last year the Vermont state Supreme Court issued an opinion, affirming the trial court below, concluding a landlord was correct in denying a reasonable accommodation request for a specific dog as the evidence demonstrated that the animal posed a direct threat. Even though the dog never attacked another resident, the evidence relied on by the court included:

*that the dog regularly reared up on her back legs, lunged, or bared her teeth at people and other dogs when outside;

*that the dog often went “crazy” [the court’s word, not mine] when other resident or dog passed the resident’s apartment home;

*that the resident informed others that the dog had been trained as a “guard dog” and was “people and dog aggressive”;

*that the resident asked another resident to walk their dogs at different times to avoid conflict with the purported assistance animal;

*that there was evidence in the record that the resident may not have been able to control the dog; and

*efforts by the resident to reduce or control the potential threat (such as limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression and/or were not appropriately raised or were thought not to be potentially successful.

While every reasonable accommodation request must be evaluated on a case by case basis, the court here provided some concrete examples of the types of behavior that it found disqualifying in an assistance animal. In my experience, even when we see an animal which may be a direct threat, management must always engage in the interactive process with the resident to determine if there are ways to control the animal. If you don’t, there is a decent chance that you might need to speak with a lawyer like me.

Just A Thought.


A Fair Housing Defense blog reader asked me for some guidance on the design and construction requirement for new apartment communities (and if there are exceptions to these requirements). While this is a topic that is better covered in a book (as opposed to an individual blog entry), there are some universal requirements that can be shared. Accordingly, new multifamily housing (with four or more units) built for initial occupancy after March 13, 1991 must have:

*a building entrance that is wide enough for a wheelchair accessed via a route without steps;

*accessible public and common-use areas;

*doors that allow passage by a person in a wheelchair;

*an accessible route into and through the dwelling units;

*light switches, thermostats, and other environmental controls in accessible locations;

*reinforcements in bathroom walls for later installation of grab bars; and

*kitchens and bathrooms that allow a wheelchair to maneuver about the space.

These fair housing standards apply to all units in buildings with elevators. In buildings without elevators, only the ground floor units must be accessible. It does not matter if the units are going to be sold or rented. If state or local accessibility laws are stricter than the federal standards, the builder/designer/owner must follow the state or local law. The federal regulations note that housing on certain sites may (and I emphasize may) be exempt because of the terrain or unusual characteristics of the site – such as extreme hills or mountains as well as certain waterfronts. The burden to establish impracticality is squarely on the builder/designer/owner of the property. You will absolutely want to speak with a lawyer like me before concluding that your site meets one of the exemptions to the accessibility requirements.

Hope that helps.

Just A Thought.

It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of [an] underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law.” That is all we want.

The Guidance further confirms that housing providers “may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability.” As such, I continue to believe we are well within our rights to continue to seek information concerning the:

*General location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year);

*Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;

*Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or

*Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.


Each year it seems that a growing number of states approve the use of medical marijuana (and/or loosen restrictions on the use of marijuana more generally). To that end, professional apartment management will likely receive (if you have not already) a reasonable accommodation request seeking to smoke marijuana at your property. What if your property is smoke free? What if you are concerned about the use of marijuana around children or others who find marijuana smoke offensive? How do you balance the rights of all? Here are some thoughts:

Despite changes in many state and local laws, the federal Controlled Substance Act (“CSA”) continues to categorize marijuana as a Schedule 1 substance. As such, the manufacture, distribution, or possession of marijuana remains a federal criminal offense. Furthermore, the U.S. Department of Housing and Urban Development (“HUD”) has distributed a memorandum which provides that the use of marijuana for medical purposes violates federal law and that federal and state anti-discrimination laws do not require leasing offices to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD concluded that management may prohibit the use of medical marijuana as a reasonable accommodation because: (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the FHA because it would constitute a fundamental alteration in the nature of the property’s operation.

In addition to the HUD guidance, a federal district court in Michigan faced with a resident’s request for medical marijuana as a reasonable accommodation because of a disability, concluded that as marijuana is still classified as a controlled substance under federal law, the resident was not entitled to a reasonable accommodation for medical marijuana use under the FHA. In so ruling, the judge reasoned that residents seeking accommodations for medical marijuana are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation is not reasonable and would constitute a fundamental alteration in the nature of the housing operation.

While every circumstance can be different, the current state of the law does not require approval of medical marijuana as a reasonable accommodation for a disability.

As always, if you have specific questions about how to apply the laws concerning marijuana at your community, I would suggest you reach out to a lawyer like me.

Just A Thought.

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.



Joining a handful of other states, New York recently enacted a state law making it a criminal offense to misrepresent that someone has a service or emotional support animal. The new statute, effective December 18, 2017, makes it unlawful for any person to knowingly misidentify a dog as a guide, service, therapy, or hearing dog. Violation of the law could result in a fine of up to $100 and up to 15 days in jail.

As permitted by our federal Fair Housing Act and various state, city, and/or county laws, some residents use service and/or emotional support animals (typically, but not always dogs) to help them in performing important tasks or to otherwise assist with receiving the full benefit of their apartment home. Assistance animals play an increasingly important role in our society and can be critical support for some residents.  Service or emotional support animals (which, of course, are not pets) do not pay otherwise due pet fees and pet deposits.

The New York law was passed to help address the concerns that a minority of individuals are taking advantage of these important laws and abusing their protections. New York is attempting to deter individuals from engaging in assistance animal fraud.

As written in this space, almost all professional apartment management companies do it right and welcome assistance animals at our properties. What we have seen, however, is an unfortunate spike in the number of applicants and residents who go online and purchase an emotional support animal verification over the internet with a few clicks and a credit card. New York has now joined a few states in working to prevent abuse of an important law which assists those Americans with legitimate disabilities and who rely on  animals every day.

A good practice is to work with your residents and applicants in preparing their reasonable accommodation request in an effort to ensure that all medical verifications are valid and were not purchased over the internet. This will help us get the request approved faster.

Just A Thought.


Last week, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a fair housing case alleging disability discrimination involving a live-in aid. Specifically, HUD reached an agreement with the owner and manager of a townhome community in California.

The settlement concludes a case filed by a resident with a mobility impairment asserting that she sought two reasonable accommodations: (1) a live-in aide; and (2) a key to a locked gate near her unit that would make it easier for her to come and go. The complaint alleged that with respect to both requests, the owner and manager asked inappropriate questions about her condition, challenged whether she really had a disability, and stated that the community was only for individuals who could live independently. After asking the intrusive questions, management denied the reasonable accommodation requests. The resident was then assisted by a fair housing advocacy group which filed a second complaint asserting discrimination.

Pursuant to the terms of the agreement, the owner and property manager will pay $4,000 to the resident and $7,000 to the fair housing group. The settlement further mandates the property owner keep the gate near the resident’s unit unlocked or provide her with a key, allows the resident to have a live-in caregiver, and requires management to participate in fair housing training.

The takeaway here is to ensure our leasing office team members know the law concerning what we can (and importantly what we cannot) ask when a resident submits a reasonable accommodation or reasonable modification request. I work with my clients to develop the appropriate forms to help prevent these types of cases from ever being filed. And if a complaint is filed, my goal is to have a paper trail (or an electronic file as we are in 2017) to permit me to defend against these types of allegations.

Just A Thought.

As apartment management company employees review and evaluate reasonable accommodation and reasonable modification requests, there are many times in which the leasing office believes it needs supplemental information in order to confirm that a resident’s request is indeed reasonable and comports with the law. In seeking additional information (such as in a circumstance in which a resident has provided a medical verification for an emotional support animal which appears to have been purchased over the internet), however, there are a number of questions management cannot ask. Remember, we are not seeking detailed medical records or confidential health care information.  Indeed, I was involved in one situation in which a treating physician’s office sent over patient medical records.  I had the records sent back with a short note.

Examples of questions that should not be asked (and this list is not exhaustive) include:

*You don’t look like you need an assistance animal. Why do you have one?

*Why do you receive social security disability benefits?

*What medication do you take to treat your disability?

*Can you walk up and down the stairs on your own?  What health care records do you have to back that up?

When we receive a request, the leasing office simply seeks legitimate information which confirms a disability (if the disability is not apparent) and provides a nexus (legalese for a link) between the disability and the requested accommodation or modification. Also, remember that while we will work to approve service and emotional support animal requests, an assistance animal can be excluded from an apartment community when that animal’s behavior constitutes a “direct threat” to other residents, the property, or to leasing office employees and the resident takes no effective action to control the animal’s behavior such that the direct threat is eliminated or at least mitigated.

Just A Thought.


Although it comes up most frequently when I review emotional support animal reasonable accommodation requests under the Fair Housing Act (FHA), the issue of just who is “disabled” is one for all of us in the professional apartment management field to understand. Under the law, a person is considered as “disabled” when there is a physical or mental impairment which substantially limits one of more major life activities, there exists a record of such an impairment, or if the person is regarded as having such an impairment. A major life activity is typically thought of as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and/or working. This is, of course, not an exclusive list and management must be prepared to evaluate each request based on the needs of any resident who reaches out.

Not all conditions rise to the level of a disability. For example, just because someone is diagnosed with anxiety – it does not necessarily follow that the person is disabled. It is absolutely true that some forms of anxiety are disabling such that the person is considered disabled under the law. Just not that every case of anxiety (or another condition) rises to the level where a reasonable accommodation or reasonable modification request is appropriate. Now, before anyone fires off an angry email, read this paragraph again. In short, there are many conditions (such as chronic mental illness, hearing loss, mobility impairments, visual needs, cancer, HIV, past drug use) which can be a covered disability and that my clients and I will engage in the interactive process with you to resolve. My point is simply that not every condition (particularly a condition that is not obvious or known to the leasing office) rises to the level of a legitimate disability. That is why, of course, management seeks medical verifications for certain accommodation or modification requests.

Also, there are two groups of people who are excluded from coverage under the FHA: (1) current illegal drug users and (2) anyone who poses a direct threat to the health and safety of others or to the property itself. If someone is perceived as a direct threat, management will need evidence as to the nature of the threat and instances of specific conduct. Raw speculation will not suffice. Also, it is a good practice to undertake a review to determine if there is an accommodation that would mitigate the direct threat before moving forward against a resident.

Just A Thought.


First, let me go off topic for a minute to wish everyone a happy and healthy Thanksgiving holiday. As I do once a year, I want to give a special shout out to my wife (Hi Sweetie!) to see if she actually reads these posts.

Assistance animal questions continue to dominate reader comments here at the Fair Housing Defense blog. As such, let me highlight a handful of points that regularly come up:

  1. Breed, size, and weight limitations may not be applied to an assistance animal (as they can be for pets).
  2. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
  3. Housing providers may ask individuals with disabilities that are not readily apparent to submit reliable documentation of the disability and the disability-related need for an assistance animal.
  4. Additionally, if a disability is not readily apparent, the leasing office may confirm that the need for the assistance animal continues. I do not suggest management check every three months, but around the time of an annual lease renewal could make sense.
  5. While the typical request is for one assistance animal, the law recognizes there may be circumstances in which an individual requires more than one animal. In such a circumstance, the nexus for each animal can be verified.
  6. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit and pet rent, they may not require applicants or residents to pay a deposit for an assistance animal.
  7. Animal owners must, however, ensure their animals stay under control at all times and clean up after the animals.

Hope that helps.  Enjoy time with family and friends this long weekend.

Just A Thought.