Hawaii Real Estate
Hawaii Real Estate
Animal House
Rules for service and support animals. And Hawaii's latest real property data!
ANIMAL HOUSE
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Honolulu, HI 96817
Phone: (808) 733-7060.
Email: har@Hawaiirealtors.com
Introduction
E komo mai. Welcome to Hawaiʻi Real Estate, a poducast on the buying, selling, and leasing of property in Hawaiʻi. Each episode of our podcasts consists of two major components: a Real Data Report, which analyzes Hawaiʻiʻs most recent real property data, and a Focus Piece, which provides legal and other special insight into a matter of major and contemporary concern for Hawaiʻi real estate transactions.
The Hawaiʻi Real Estate podcast is produced by the Hawaiʻi Association of Realtors®, with support from its Legal Kokua program. New episodes of the podcast are released on the first Wednesday of each month.
Today is Wednesday, October 4th, 2023. In our focus piece for this episode, we delve into the rules for granting, rejecting, and restricting tenant requests for reasonable accommodation for use of a service or emotional support animal.
But first, we go to the numbers. Here is our Hawaiʻi Real Data Report.
Real Data Report
Interest Rates
Mortgage rates in the United States are at a generational high. The average 30-year fixed rate mortgage in the United States on September 28, 2023, the last date for which data was available before releasing this podcast episode, was 7.31%, the highest rate average rate for the 30-year fixed rate note since December 15, 2000. Similarly, the 15-year fixed rate mortgage average in the United States is at a decades-long high at 6.72%, the highest average rate for that note since July 2013.
There is consensus within the real estate industry, however, that mortgage rates have peaked and are about to begin a gradual decline. NAR expects mortgage rates to average 6.4% in 2023, gradually decreasing to 6.1% by year’s end.
Fannie Mae has an even rosier outlook. They expect mortgage rates to average 6% in 2023 and then decline to 5.4% in 2024.
If you’ve been thinking about buying a home but have put it off because of high interest rates, you should reevaluate. Mortgage rates appear ready to fall. Others purchasers have been waiting for this moment. Don’t be the last one to the open house.
Median Listing Price
This is a magic moment. Median listing prices for homes throughout most of Hawaiʻi have not yet begun to reflect the industry consensus that mortgage rates will soon about face and begin a downward march. Lower rates usually mean higher prices, but the median listing price for homes in Hawaiʻi remain slightly depressed.
In the City and County of Honolulu, for instance, the median listing price for a home in August 2023 was $850,000, $4,000 cheaper than the previous month and $36,500 cheaper than the previous year.
Median listing price for a home in Hawaiʻi County in August 2023 was $583,250, a whopping $14,750 lower than the previous month and $57,500 lower than the previous year.
Kauai County registered a median listing price for a home in August 2023 of $1,611,250, down comparatively low $6,250 from the previous month and $5,000 even from the previous year.
The only county with median listing prices that were higher month-on-month and year-on-year was Maui County, which in August 2023 had a median listing price for a home of $1,422,000, or $27,000 higher than the previous month and an impressive $97,500 higher than the previous year.
Excluding Maui, median listing prices throughout Hawaiʻi are down 3.16% from last year. Yet, at this time last year, mortgage rates were averaging about what Fannie Mae predicts they will return to in 2024. So, if Fannie Mae is correct, purchases have an opportunity now to save 2-3% on a home.
Median Days on the Market
Remarkably, though, despite this price-friendly climate for buyers, buyers appear to retain a major bargaining advantage. Homes are remaining on the market for longer than recent history suggests that they should, although that trend does appear to be slowing.
The median amount of time a home stays on the market in the City and County of Honolulu in August 2023 was 61 days, 2 days longer than the previous month and 15 ½ days longer than the same month last year. In Hawaiʻi County, the median listing period in August 2023 was 75 days, 8 days longer than the previous month, and 17 ½ days longer than August 2022.
Maui County saw an eight-day increases in the median listing period from July 2023 to August 2023. And at 81 days, the median listing period for a home in Maui was up compared to August 2022 by 19 days.
Only Kauai County saw a decrease in the median listing period from July 2023 to August 2023, although its August 2023 median listing days was still substantially higher than it was August 2022. At 83 days, Maui’s median listing period was four days shorter than the previous month but 19 days longer than it was in August 2022.
So home values remain discounted and buyer leverage remains high. It is a magic moment for buyers, but the moment is likely fleeting. The time to act is now.
Focus Piece: Animal House
Introduction
And now for our focus piece. We focus this month on reasonable accommodations for service and support animals.
More and more people are demanding a reasonable accommodation for their use of a service of support animal in their home. And to many, the situation is getting out of control.
The Fair Housing Act requires housing providers, including property owners and managers, homeowner associations, condominium associations, cooperatives, colleges and universities, and even state and local governments, to make reasonable accommodations to allow individuals with disabilities to have assistance animals in their homes. But which animals qualify as assistance animals—because claims for assistance animals are getting truly wild.
A man living in Pennsylvania, for instance, claimed to have a right to a “comfort alligator.” He argued that the alligator was his emotional support animal and that he needed it to cope with his anxiety and depression. Of course the man’s landlord refused to allow the alligator free range throughout the housing complex, so the man filed a complaint with the U.S. Department of Housing and Urban Development, claiming that his landlord violated the Fair Housing Act by denying his reasonable accommodation demand for his comfort alligator.
Astoundingly, the man’s claim is not an aberration. People have claimed the right to keep a variety of wild emotional support animals in their homes, including:
· pigs,
· penguins,
· turkeys,
· monkeys,
· lobsters, and
· ducks.
In an example that might hit closer to home, one man claimed a right to a reasonable accommodation for an emotional support roster.
“Roosters can be loud. They can also be aggressive. But for people who live near the intersection of [inaudible]and Running River Road, they have had enough.”
“It’s getting ridiculous at this point.”
According to a recent notice issued by the Department of Housing and Urban Development, the federal agency with primary responsibility for enforcing the Fair Housing Act, “FHA complaints concerning denial of reasonable accommodations and disability access comprise almost 60%—that’s six-zero percent—of all Fair Housing Act complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. In fact, such complaints are, according to the U.S. Department of Housing and Urban Development, one of their most common types of fair housing complaints.
But what counts as a disability? Can a housing provider verify a claim of disability or inquire into how an animal helps a disabled person gain equal access and enjoyment of their home?
And are there any restrictions on the kinds of animals that can serve as an assistance animal or limits to the accommodations that one must make for an assistance animal?
This focus piece answers all those questions. It puts an end to the madness.
Physical Disability Rates Rising
The National Institutes of Health confirm what we inferred from the rising number of reasonable accommodation complaints filed with the U.S. Department of Housing and Urban Development: the use of service and support animals are on the rise.
Perhaps that shouldn’t be surprising. The number of people living with a disability in the United States is also rising. Hawaiʻi may be the healthiest state in the country—we have the highest life expectancy, lowest obesity rate, and the highest rate of physical active people—but we are not immune to the nationwide upward trend in disability rates.
According to the Centers for Disease Control and Prevention, 8% of Hawaiʻi residents have serious difficulty walking or climbing stairs. Another 8% have serious difficulty concentrating, remembering, or making decisions. Visiting a doctor’s office or conducting any other daily errand is a serious difficultly for 5% of our residents, and 6% of our residents experience deafness or serious difficulty hearing. 3% of us are blind or have serious difficulty seeing, even when while wearing glasses, and another 2% of us have difficulty dressing or bathing.
Maybe Hawaiʻi compares well against the nation, which suffers even higher rates of disability, but there can be no argument: the rate of people living with a disability in Hawaiʻi over the years is rising. And our “best in the nation” health title might be fleeting.
The high cost of housing in Hawaiʻi is forcing many young people to move to other states, leaving an older more disability-prone population behind. As the population ages, there is an increase in the number of people with chronic health conditions, like arthritis, heart disease, and stroke. These conditions can often lead to a physical disability that would require the use of a service animal.
Obesity is also on the rise. Because obesity is a major factor for a number of chronic health conditions, like diabetes, obesity can also lead to physical disabilities that can, again, require the use of a service animal to enjoy equal access and use of a premise.
In a not altogether expected way, medical advances and increased access to healthcare has also contributed to the rise in disabled Americans. President George W. Bush signed the Medicare Modernization Act into law in 2003, making prescription drugs more affordable and accessible for millions of Americans. Seven years later, a different president, President Barack Obama, signed the Affordable Care Act into law, expanding healthcare coverage by:
· prohibiting health insurance companies from denying coverage to people with pre-existing conditions or setting lifetime or annual limits on coverage;
· requiring health insurance plans to cover a set of essential health benefits, including preventive care, prescription drugs, and mental and substantive abuse treatment;
· expanding Medicaid, where states agreed, to accept expanded Medicaid to adults with incomes below 138% of the federal poverty line; and
· offering subsidies for individuals and families to shop in a new marketplace of insurance plans.
All the while, medical researchers innovated targeted therapies and immunotherapies to extend the lives of those suffering from cancer. Surgeons executed novel minimally invasive surgeries—also extending the lives of those who otherwise would have had scant recourse against predator diseases. In short, major advances in medical science and increased access to healthcare helped people live longer—and the longer you live, the more likely they were to need assistance.
And so Americans turn in greater numbers to service animals.
Visually impaired Americans, for instance, turn to seeing eye dogs to identify obstacles and navigate through complex environments.
Hearing impaired Americans turn to hearing assistance dogs to alert them to important sounds like doorbells, smoke alarms, telephone calls, and sirens.
A seizure dog can detect the onset of a seizure and take steps to protect their master by, for instance, shuttling in underneath them to cushion their fall and alerting others to the emergency.
Service Animals
So, legally speaking, what is a service animal?
Within the context of housing, a service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. If the animal is not a dog, it is not a service animal. If the animal is not trained it is not a service animal.
The work or tasks performed by a service animal must directly relate to the individual’s disability. Neither the potential crime deterrent effect of an animal’s presence not its provision of emotional support, comfort, or companionship qualifies an animal as a service animal.
To be a service animal, at least within the context of housing accommodations, the animal must be a dog and it must be trained.
Support Animals
Support animals are a different beast. Unlike service animals, support animals need not be a dog and they need not be trained. A support animal simply needs to alleviate a symptom of a person’s disability.
Support animals can be vitally important to a disabled person’s wellbeing. They can provide a disabled person necessary companionship and support, and they can help to reduce the disabled person’s social isolation.
A support animal can improve a disabled person’s mental health. The animal can help to reduce stress their master’s stress and anxiety and improve their mood. The animal can also provide their master with a sense of security, warmth, and safety.
Assistance Animals Up
Of the two kinds of assistance animals—service animals and support animals—it is support animals that are in vogue. The use of support animals are spiking.
The steep climb in demand could owe in part to an increased awareness and understanding of mental health issues. Actors, athletes, politicians, and other public figures now speak openly about their struggles with mental illness, and the shame associated with mental illness is lessening. As the mental illness stigma fades, so too does the reticence to request accommodation for one’s mental illness.
And, of course, people are more willing now to go public with their mental illness because it is more common now. According to the Substance Abuse and Mental Health Services Administration’s 2020 National Survey on Drug Use and Health, between October 2019 and October 2020, 21 percent of adults aged 18 or older (or 52.9 million people) had any mental illness and 5.6 percent (or 14.2 million people) had serious mental illness.
Fraud Concern Up
So we have an older population that is more prone to physical disability and a younger population that is more prone to mental illness. Should we surprised that demands for reasonable accommodation are rising?
No, of course not, but the lack of regulation surrounding the use of emotional support animals has led to widespread suspicion as to the legitimacy of many people’s demands for their use of a support animal.
Flaming that suspicion is the rampant rise of private companies that offer tags, vests, certificates, and other products purporting to identify an animal as an emotional support animal. You can purchase vests and tags online from Amazon and other retailers for $30 that purport to identify your animal as a support animal. They have no legal value, but they do look official.
And healthcare professionals offer virtual meetings for a small fee for the sole purpose of providing a letter to support an individual’s claim for an emotional support animal.
An entire cottage industry sprang up to help you convince your landlord that your pet is actually an assistance animal for which you are owed a reasonable accommodation. Tenants who are not really disabled are claiming that their pet is a support animal so as to live with their pet in a building with a “no pet policy” or so that they can avoid paying a pet deposit.
Hawaiʻi acknowledged that problem last year when it enacted Act 154, clarifying that a vest or other distinguishing animal garment, tag, or registration document that is of a type commonly purchased online and that purports to identify an animal as a support animal is, in itself, insufficient to establish an animal as a support animal.
But Hawaiʻi cannot change federal law. Yes, Hawaiʻi has its own law prohibiting discrimination in real property transactions (that’s chapter 515 of the Hawaiʻi Revised Statutes) and Act 154 can affect how demands for reasonable accommodation are interpreted under that law, but Hawaiʻi cannot change federal law.
In fact, section 3615 of the United States Code makes clear that the Fair Housing Act preempts all state and local laws that require or permit any action that the Federal Housing Act defines as a discriminatory housing practice.
So what’s the federal law for verifying whether an animal is a service animal or support animal? We now turn to answer those questions.
Verifying Assistance Animals
The standards, procedures, and evidence necessary for granting or denying a reasonable accommodation for a service animal and support animal differ. Let’s start with service animals.
Verifying Service Animals
Remember: a service animal is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. If the animal is not a dog, it is not a service animal. If the animal is not trained, it is not a service animal.
The work or tasks performed by a service animal must directly relate to the individual’s disability. If it is not readily apparent that the dog is trained to do work or perform tasks for the person with a disability, then the housing provider may ask two questions—and only two questions:
· “Is the dog required because of your disability?” and
· “What work or task has the dog been trained to perform?”.
The housing provider cannot, however, ask about the nature, extent, diagnosis, or severity of the tenant’s disability; request documents, including but not limited to medical records; or request access to healthcare providers.
Verifying Support Animals
Now to verifying support animals.
As we mentioned before, support animals are a different beast. Unlike service animals, support animals need not be trained and need not be dogs.
Housing providers are severely restricted in what information they may seek to verify a service animal, but they are granted considerably more latitude in verifying a support animal. Before granting a reasonable accommodation for a support animal, a housing provider is entitled to information that reasonably supports the existence of the relevant tenant’s disability or disability-related need for a support animal. That information may be provided in the form of:
· a letter or other communication from the tenant’s treating healthcare professional, mental healthcare professional, or social worker;
· the tenant’s receipt of a disability benefit or service (e.g., Social Security Disability Income, Medicare, or Supplemental Security Income for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency);
· a government agency determination of the tenant’s disability; or
· evidence of the tenant’s eligibility for housing assistance or a housing voucher received because of the tenant’s disability.
There are limits, though, on what a housing provider may do to verify that an animal is a support animal. A housing provider cannot require an independent diagnosis, conduct their own evaluation, or otherwise inquire as to the diagnosis, nature, or severity of the tenant’s disability.
Uncommon Animals
Now, a quick word on uncommon animals. If the animal at issue is a non-domesticated animal or a type of animal that is traditionally kept for pleasure rather than for a commercial purpose (e.g., a barnyard animal, monkey, kangaroo, or reptile that is not a turtle), the tenant seeking a reasonable accommodation to for its use as a support animal must demonstrate a disability-related, therapeutic need for that specific animal or that specific type of animal, otherwise the animal does not qualify as a support animal for which the housing provider must make a reasonable accommodation.
Rejecting a Service or Support Animal
The term is “reasonable accommodation.” If the request is not reasonable, it need not be granted.
Even if an animal properly qualifies as a service or support animal, a housing provider may deny a tenant’s request for accommodation if the requested accommodation is unreasonable. For instance, a housing provider may deny a tenant’s request for a reasonable accommodation if:
· the animal poses a direct threat to the health or safety of others and the animal’s owner or handler takes no effective action to control the animal so that the threat is mitigated or eliminated;
· the animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by a reasonable accommodation;
· the presence of the assistance animal would pose an undue financial and administrative burden to the owner or person engaging in a real estate transaction; or
· the presence of the assistance animal would fundamentally alter the nature of the housing provider’s operations.
But the determination of whether an assistance animal poses a direct threat and whether the animal’s owner or handler has taken effective action to control the animal so that the threat is mitigated or eliminated, must be based on an individualized assessment about the specific animal in question, including but not limited to the animal’s current conduct or recent history of overt acts. The determination may not be based on the animal’s species or breed, and denial of the use of a particular animal does not preclude a request to use a different animal.
Restricting a Service or Support Animal
Even if an animal is an assistance animal for which the housing provider must grant a reasonable accommodation, reasonable restrictions or prohibitions may be imposed against excessive noise or as are reasonably required to leave the leased premises in the same condition as it was in before it was leased to the disabled tenant. These restrictions and prohibitions include but are not limited to:
· assigning responsibility for damage caused by the animal;
· requiring the cleaning of the unit—by fumigation, deodorizing, professional carpet cleaning, or other appropriate method—upon the tenant’s vacating of the unit;
· requiring the cleaning of the animal’s waste;
· requiring that the animal be licensed with the county, if licensing is required by the county;
· requiring that the animal be vaccinated, with documentation of the vaccination; or
· requiring that the animal be under the control of the animal’s owner or handler by use of harness, leash, tether, cage, carrier, or other physical control in common areas (but if the nature of the person’s disability makes physical control impracticable, or if physical control would interfere with the assistance that the animal provides, the housing provider may require that the animal be otherwise under the control of the animal’s owner or handler by voice control, signals, or other effective means).
The housing provider may not, however, require a separate security deposit for a tenant’s service or support animal.
Now that you know the rules for granting, denying, or restricting a tenant’s request for a reasonable accommodation, it’s time to move on to how discrimination is identified and how the discrimination rules are enforced. And pay attention, because a case argued before the U.S. Supreme Court today—actually just a few hours ago—may lay the groundwork for changing how Fair Housing is identified and how fair housing claims are brought in the U.S. federal courts.
Subtle Discrimination
Overt housing discrimination has become less common. It is highly unlikely, for example, that you will see an advertisement for an apartment for rent that expressly states that “no reasonable accommodations for assistance animals” or “no disabled tenants allowed.” The discrimination that exists now is more subtle, like quoting higher rental prices or claiming that no units are available when, in fact, units are available.
That’s where so-called “testers” come in. Testers are individuals who ferret out discrimination by posing as interested tenants. They are members of a protected class—like a disabled person who is protected under federal law from being discriminated against in housing transactions—but who have no actual or real intent to engage in a real estate transaction. They are simply inquiring about an apartment for rent to see if they are treated the same as someone who is not a member of their protected class.
A tester with a disability that requires the use of an assistance animal might, for example, contact a landlord or property manager who’s offering an apartment for rent in a building with a “no pets policy” just to see if an exception to that policy will be made for the tester’s assistance animal. If the tester believes that they have experienced discrimination, they can file a complaint with the U.S. Department of Housing and Urban Development (HUD) or the U.S. Department of Justice (DOJ). Either HUD or DOJ can investigate the complaint and take enforcement action if necessary.
Or the tester can file their own lawsuit in federal court, despite never intending to lease the apartment, but their right to do is lately looking a little shaky. To bring a claim in federal court, a plaintiff must should that they’ve suffered an injury and that by filing their complaint with the court they’re seeking redress for that injury—in the words of a lawyer, they must show that they have standing to bring the claim. Establishing standing for a tester can be tricky, therefore, because the tester did not suffer any injury from being denied the apartment or offered the apartment at a higher rent (remember; they never wanted the apartment in the first place) and because they are not asking the court to redress any particular injury that they personally suffered.
Standing
Havens Realty Corp. v. Coleman
The issue of whether testers have standing to bring discrimination claims under the Fair Housing Act was thought to have been addressed way back in the 1980s when the U.S. Supreme Court decided Havens Realty Corp. v. Coleman. In that case, Havens Realty Corporation owned and operated two apartment complexes in Henrico County, Virginia. Paul Coles, a black man, inquired about renting an apartment from Havens but was told that there were no vacancies. Housing Opportunity Made Equal (HOME), a nonprofit organization that worked to combat racial discrimination in housing, employed Sylvia Coleman, a black woman, and Kent Willis, a white man, to test Havens’s renting policies. Coleman and Willis made independent inquiries to Havens about the availability of apartments. Havens told Coleman, the black woman, that there were no vacancies but told Willis, the white man, that there were vacancies.
Coles, HOME, Coleman, and Willis filed a lawsuit against Havens in United States District Court for the Eastern District of Virginia in 1979, alleging violations of the Fair Housing Act. The district court dismissed Coleman’s and Willis’s claims on the ground that they lacked standing because they were testers and did not actually intend to live at a Havens complex. The court of appeals reversed, and the Supreme Court of the United States agreed to hear the case.
The U.S. Supreme Court held that Coleman and Willis, the testers, had standing to sue Havens Realty under the Fair Housing Act for discriminating against them because of their race. The court reasoned that the Fair Housing Act creates a legal right to truthful information about the availability of housing and that any person who is denied access to that truthful information has standing to sue.
The Havens Realty decision affirming tester standing has been applied in multiple housing discrimination contexts, across multiple jurisdictions, for over a generation. It’s a seminal case that for generations supporting the rights of individual testers to go out into the world to identify housing discrimination and then, when they find it, to bring claims in federal court for housing discrimination.
TransUnion v. Ramirez (2021)
Cracks in the Havens Realty decision’s reasoning, however, began to show in 2021, when the high decided TransUnion v. Ramirez.
In that case, the plaintiff, Sergio Ramirez, and 8,185 other plaintiff class members received credit reports from TransUnion that included an alert indicating that their names were a “potential match” to a name on the Treasury Department’s Office of Foreign Assets Control list of terrorists, drug traffickers, and other serious criminals. 1,853 of the total 8,185 class members had their “potential match” shared with a third party.
The issue was whether the 6,332 plaintiff class members whose “potential match” as a terrorist or other serious criminals was not shared with a third party had suffered an injury that would confer upon them standing to sue. The court held that they did not. It reasoned that, “An asserted informational injury that causes no adverse effects cannot satisfy [the constitution’s requirements].” For an wrong or misleading information to confer standing, the court explained, there must be some downstream effects, like difficulty in obtaining a loan or other form of credit, higher interest rates on loans, denial of employment, increased insurance premiums, or damage to one’s reputation—in other words, the informational injury must actually result in some downstream harm.
Now remember that the court in Havens Realty based the tester’s standing to sue on the tester having received inaccurate information on the availability of a unit—and nothing else. Would another tester coming before this court—the modern court, the court after TransUnion—also have to show not just that they not only received inaccurate information, but that they suffered some “downstream effect”?
Circuit Split
On this point, the lower circuit courts are likely to be split. On one side is the U.S. Court of Appeals for the Fifth Circuit, a very conservative federal appellate court, which seems poised to require testers suing under the Federal Housing Act to show some downstream effect to themselves personally or get booted from court, and on the other side is the Ninth Circuit courts of appeals, a very liberal courts of appeals, which has affirmed that the “any person” who suffers a Fair Housing Act violation has right to bring a claim in federal court, regardless of whether that person ever intended to engage in a housing transaction or suffered any monetary or other injury.
The Fifth Circuit issued an opinion last month, Louisiana Fair Housing Action Center, Inc. v. Azalea Garden Properties, L.L.C., rejecting a housing advocacy organization’s housing discrimination claim on the basis that it lacked standing. The court reasoned that the use of testers, without more, was insufficient to establishing standing.
In square contrast to the Fifth Circuit, the Ninth Circuit held in its 2004 Smith v. Pacific Properties and Development Corporation case that individual testers have standing to bring disability discrimination claims in the federal courts under the Fair Housing Act. Because the FHA expressly states that “any person” may enforce their rights under that act “when they are violated by discriminatory housing conditions,” the court reasoned, an individual tester who has personally encountered discriminatory housing conditions may bring a housing discrimination claim in federal court without showing some other injury.
Acheson Hotels, LLC v. Laufer
In a preview of how the U.S. Supreme Court might settle this brewing split between the ninth and fifth circuits on whether a self-appointed tester can bring a housing discrimination claim without showing some downstream effect to themselves personally, the U.S. Supreme Court heard oral arguments today, Wednesday, October 4 in Acheson Hotels, LLC v. Laufer, to determine whether a self-appointed tester had standing to sue a hotel under the Americans with Disabilities Act for failing to provide disability information on its website, even if the tester never had any intention to visit the place of public accommodation themselves.
“We will hear argument this morning in Case 22-429, Acheson Hotels, LLC v. Laufer. Mr. Unikowsky?”
“Mr. Chief Justice, and may it please the court.”
Acheson Hotels and the line of cases holding that self-appointed testers have standing to bring a Fair Housing claim in federal court without suffering anything more than a stigmatic or dignity harm are distinguishable. The Fair Housing cases are decided under the Fair Housing Act, of course, which unlike the Americans Disabilities Act specifically grants “any person” that suffers a Fair Housing violation to bring a claim in federal court. This exchange between a litigant and Justice Sotomayor makes that point:
“So, I, I, agree with a lot of what you said, Justice Sotomayor, I think the distinction comes between the way that the statute at issue in Havens was written, which was, it is unlawful, um, to falsely tell any person that, uh, there is no housing available for a discriminatory reason, essentially, whereas, the, eh, eh, and so it doesn’t matter whether, eh, eh, whether you’re going to rent the apartment—does not matter at all. I think, here, the reservation rule is much narrower than that. It does provide a right to information, but in connection with actually making a reservation. So, if you go to pages 9A-10A of our statutory appendix, where the regulation is laid out in full, um, the title of it is Reservations Made by Places of Lodging, the requirements apply with respects to reservations made by any means, um, and all the way through to, um, the exceptions and the effective date are based on reservations, and so I think it’s not this sort of anybody in the world gets information in quite the same way that it was in Havens.
But as this litigant makes clear in an exchange with Justice Thomas today, the injuries suffered by a testers bringing claims of disability discrimination claims under the Americans with Disabilities Act, like the plaintiff in Acheson Hotels, is the same as the injury suffered by testers bringing claims of disability discrimination under the Fair Housing Act, like testers who bring claims that a landlord denied them a reasonable accommodation for their use of an assistance animal.
“Which injury are we talking about?”
“Here, we’re talking about discriminatory denial of information. So it’s not a pure informational injury. The discriminatory, ah, aspect of it is important because, as in Havens, ah, it’s not just that you’re not getting the information, um, you’re not getting the information for, ah, reason that conveys that you have, ah-errr-uh, an inferior status in society. So, it’s, ah, er, a inflicting a dignitary harm that you would not have for a pure informational injury.
And as that same litigated pointed out later in her argument to the court today, the requirements for standing are looser in civil rights cases. In Fair Housing Act discrimination cases, for instance, the court has held since it decided Havens Realty in 1981 that discrimination in contravention of a federal statute is sufficient to bring a claim in federal court—there need be no attendant tangible harm:
“For over six decades, and most noteably in Havens Realty, this court has recognized that discrimination inflicts Article III injury, regardless of whether the plaintiff experiences any harm beyond the unequal treatment. What it means to personally experience discrimination on the Internet is a novel question but whether the answers is one that we’ve offered or the one that the government proposes, Havens requires a test that focuses on what the plaintiff experiences on the website, not her underlying motive in that experience or whether any downstream injuries result.
The Acheson Hotels case presents the Supreme Court with an opportunity to upend decades-long precedent. It could hold that its 2021 TransUnion case requires self-appointed testers to show that the discrimination they identified created for themselves some downstream effect. Because testers have no personalized interest in the real estate transactions they are testing for discrimination, such a holding would bar testers from bringing discrimination claims in federal court.
A tester would have standing, for instance, for bringing a claim against a landlord for denying a request for reasonable accommodation for use of an assistance animal.
Conclusion
And that’s our episode. Please remember: we release new episodes on the first Wednesday of every month. Please join us next month for our next focus piece and for the latest Hawaiʻi property data.
Mahalo. A hui ho.
