This week’s blog entry come to me courtesy of Clinical Law Prof. Emeritus Leonard Sandler of the University of Iowa Law School. It asks the question of whether a landlord can charge a pet deposit for an ESA (emotional support animal). Loper Bright also comes up as well. The case of the day is Henderson v. Five Properties LLC, here, decided by the United States District Court for the Eastern District of Louisiana on July 16, 2025. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a fee for ESA’s is permissible in most circumstances; court’s reasoning that HUD guidances on not charging fees for ESA’s do not survive Loper Bright; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Five Properties allows pets. However, owners of pets have to pay a fee. Plaintiff requested that the fee be waived because her dog was an emotional support animal. She could pay the fee if it was on an installment plan but believed the law exempted her from a fee altogether. When plaintiff sued under the federal Fair Housing Act (FHA) and its Louisiana equivalent, Five Properties counterclaimed for breach of contract arising of the unpaid rent and damages caused by the dog (in light of the way the court decided the case, the court declined to exercise supplemental jurisdiction over the breach of contract claim and dismissed the defendant’s state law claims without prejudice).

 

II

Court’s Reasoning That a Fee for ESA’s Is Permissible in Most Circumstances

 

  1. Under both the FHA and its Louisiana equivalent, discrimination includes a refusal to make reasonable accommodations in rules, policy, practices, or services, when such accommodations may be necessary to afford that person equal opportunity to use and enjoy a dwelling.
  2. Proving up a failure to reasonably accommodate in the fair housing context involves: 1) the residents of the affected dwelling or home suffer from a disability; 2) they requested an accommodation from the defendant; 3) the requested accommodation was reasonable; and 4) the requested accommodation was necessary to avoid the residence equal opportunity to use and enjoy the home.
  3. Many types of residential fees affect persons with disabilities as well with persons without disabilities equally and those fees are clearly proper.
  4. Fees that merit closer scrutiny are those with unequal impact imposed in return for permission to engage in conduct that under the FHA a landlord is required to permit. The inquiry to determine if a generally applicable fee does this is highly fact specific requiring a case-by-case determination.
  5. Proving whether an accommodation is necessary means that a plaintiff must show the requested accommodation makes the home therapeutically meaningful or financially viable.
  6. Courts consider necessity in light of: 1) the statutory provision’s language; 2) the purpose of the FHA and the ADA to ameliorate the person’s particular disability; and 3) the proposed alternatives.
  7. A preferable accommodation alternative is not sufficient, rather it must be essential. To be therapeutically necessary, an accommodation must be indispensable, requisite, essential, needful that cannot be done without or is absolutely required. That is, the accommodation must be so necessary and so closely linked to the individual’s disability that without the requested accommodation, the benefit provided would be so insignificant so as to deprive the person with a disability from the opportunity to use and enjoy the dwelling of their choice as compared to those without disabilities.
  8. A requested accommodation is necessary only if the plaintiff shows that without the requested accommodation, they will receive no ameliorative effect from the disability, thereby depriving them of the equal opportunity to enjoy the dwelling.
  9. Therefore, to have the fee waived, plaintiff must show that her requested accommodation is indispensable and essential to alleviating the effects of her disability.
  10. Plaintiff put forward no evidence to demonstrate that waiving the fee would alleviate any effects of her disability. Rather, a payment plan for the animal fee would have been effective, and defendants offered twice to establish a payment plan so that the plaintiff could afford the fee. Further, plaintiff stated she could have paid the fee if it had been broken out into installments.
  11. When considering the reasonableness of a generally applicable fee to everyone, a court needs to consider factors such as: 1) the amount of fees imposed; 2) the relationship between the amount of fees and the overall housing cost; 3) the proportion of other tenant paying such fees; 4) the importance of the fees to the landlord’s overall revenues; and 5) the importance of the fee waiver to the tenant with a disability.
  12. In this case, the animal fee was a one time payment of $400.24. The overall housing cost was $910 a month for a term of 15 months. Therefore, the fee was a little under 3% of the total cost of housing.
  13. Plaintiff did not provide any information about the importance of the fee to the landlord’s overall revenue. She also provided no evidence on the number of other tenants paying the fee. Finally, plaintiff submitted no evidence that the fee had an unequal impact on or was designed to wrongly target individuals with disabilities. She also failed to establish the importance of the fee waiver to her.
  14. Animal fees are relatively typical for apartment buildings allowing animals.

 

III

Court’s Reasoning That HUD Guidances on Not Charging Fees for ESA’s Do Not Survive Loper Bright

 

  1. It is the role of the courts not the agency to interpret constitutional and statutory provisions.
  2. Plaintiff’s cited agency interpretation, which was not derived from formal adjudication or formal rulemaking, are entitled to respect only to the extent that they have the power to persuade.
  3. The weight of the agency’s interpretation depends upon the thoroughness of the evidence in its consideration, the validity of its reasoning, and its consistency with earlier and later pronouncements.
  4. HUD’s notice is unpersuasive for numerous reasons: 1) the regulatory authorities cited by HUD in its guidance do not provide thorough reasoning in its interpretation or offer any explanation or authorities for its cursory statement regarding the payment of fees; 2) HUD specifically states that the joint statement is not intended to imply that it is binding statutory or regulatory authority; 3) the cases cited by HUD for the authority waiving fees do not refer to the joint statement with respect to animal fees nor do they even deal with the question of animal fee at all; 4) another case cited by HUD refers to the joint statement with no discussion of the cited authority and merely restated the joint statement’s brief conclusion. It also involved a fee that was not generally applicable to everyone; 5) yet another case cited by HUD, referred to the joint statement as if it were binding, but that is no longer the case after Loper Bright.
  5. Just because the joint statement or the notice (the HUD circular), may be convincing on other topics, does not make the entire documents influential.
  6. Plaintiff failed to establish that the waiver of the fee was necessary and reasonable.

 

IV

Thoughts/Takeaways

 

  1. A critical fact here is that the landlord charged a fee for pets. This was not situation where the landlord did not allow pets.
  2. Generally applicable fees are okay.
  3. An accommodation under the FHA must be necessary and the plaintiff has the burden of proof on that. Whether the accommodation is necessary is a relatively high burden to meet as the accommodation must be so necessary and so closely linked to the individual’s disability that without the requested accommodation the benefit provided is so insignificant so as to deprive the person with the disability the opportunity to use and enjoy the dwelling of their choice when compared to those without disabilities.
  4. Reasonableness of the fee is something that can be litigated, and showing the fee is unreasonable depends on a variety of factors that is hard for a plaintiff to meet.
  5. A year ago, here, Richard Hunt and I were simultaneously discussing in our own blogs the impact of Loper Bright in the FHA world. I raised the question of whether the HUD circular on service animals and emotional support animals would survive Loper Bright. Now we have a case saying that the HUD circular, at least in part, does not survive, at least in Judge Vance’s (the author of the opinion), courtroom in the Eastern District of Louisiana.
  6. Richard just blogged on the case discussed in this blog entry in his blog, here.
  7. Definitely look for other aspects of the HUD circular to be challenged on Loper Bright grounds, now that one aspect of it has been successfully challenged in a court.
  8. It is entirely possible that Loper Bright might help individuals with disabilities as well. For example, the HUD circular lists certain kinds of animals that may be typically allowed. However, Loper Bright would allow a person with a disability to claim that an animal not listed or subject to a higher scrutiny (an uncommon animal), might survive because the animal was serving a purpose listed by the other animals. On the ADA side, one wonders if Loper Bright would not allow a court to extend protections to a dog that is utilized as a hearing dog that is used for residential purposes only (for example, a person takes their service dog on a train with them, but the dog does not accompany them everywhere on the train as the dog is used for residential purposes). I have been told that is not uncommon for members of the Deaf/deaf/Hard of Hearing communities who have hearing dogs to use their service animals for residential purposes only (it is certainly true in my case).
  9. This decision strictly applies to ESA’s and not to service animals. It is an entirely different kettle of fish so to speak if a service animal is involved. Also, particularly with respect to psychiatric service animals, the line between a service animal and an emotional support animal can be quite small. In light of this decision, look for more claims going forward that the dog, when a dog is involved, is a service animal and not an ESA.
  10. This case gives landlords who allow pets on the premises for AP, a powerful tool, the charging of a generally applicable fee for pets/ESA’s, for discouraging people from claiming an ESA is involved.
  11. For landlord that do not allow pets on their premises, the case also sets a very high standard for a plaintiff with respect to showing the necessity of meeting the animal.
  12. Of course, if a landlord decide to use the tools of this case, it may get very expensive to have the tools of this decision upheld by a court. Since applicable only up Loper Bright is a moving target and just beginning, it would not be surprising to see courts reach a variety of conclusions as to how this kind of situation and others involving ESA’s play out.
  13. It will be interesting to see whether Five Properties having won, now elects to pursue their state law breach of contract claims in state court.

 

Stay cool everyone!!