On September 17, 2020, a Michigan Court of Appeals panel unanimously held, in Riverbrook v. Fabode
, that trial courts are “… required to consider reliability of methods employed by counselor as expert, as well as her final opinion in letter that tenant required an ESA because of a disability, before determining whether owner of mobile home park had refused to make a reasonable accommodation as required by the FHA.” Riverbrook v Fabode
, No. 349065, 2020 WL 5580152 (Mich. Ct. App., Sept. 17, 2020). In Riverbrook
, the trial court erroneously rejected the landlord of a mobile home’s evidentiary challenges to the reliability and methods of collection of the tenant’s medical documentation to support his reasonable accommodation request for an Emotional Support Animal (“ESA”). Because of the Court of Appeals ruling in Riverbrook
, Housing Cooperatives seeking information from members in reasonable accommodation requests for emotional support animals, are now permitted to ask for reliable disability-related information. Although these reasonable accommodation requests should be considered on a “case-by-case” basis, Riverbrook
provides additional guidance for what information Cooperatives may seek when considering the request.A. The Facts of Riverbrook v. Fabode.
The tenant, Anthony Fabode, resided in a mobile home leased to his sister by Riverbrook. In 2018, Mr. Fabode obtained a dog of a mixed Labrador Retriever mixed breed, although Riverbrook suspected the dog’s breed to be a Pitbull mix, which was a prohibited breed on their property. Mr. Fabode did not notify Riverbrook of the dog, and upon learning of the dog’s presence on the property, Riverbrook notified Mr. Fabode that he violated Riverbrook’s rules and policies, and requested that the dog be removed from the premises. In response, Mr. Abode provided veterinary records as to the dog’s breed and a “USAR” certificate declaring the dog as an emotional support animal. Riverbrook thereafter issued a demand for possession and termination of Mr. Fabode’s tenancy.B. The Eviction Proceedings and Trial Court’s Treatment of Suspect Evidence of the Tenant for His Disability and Emotional Support Animal.
In response to Riverbrook’s demand for possession, Mr. Fabode obtained a letter from Anne Venet, “a limited license professional counselor.” The letter from Ms. Venet declared Mr. Fabode’s need for an emotional support animal, stating that Mr. Fabode “has been evaluated by me. I am familiar the [his] history and limitations imposed by the … disability.” The letter also stated that Mr. Fabode had been diagnosed with Differential Illness, and that under her opinion, a “[r]easonable accommodation should be given … [to] be allowed to live with the animals in the dwelling …”
Riverbrook, however, was skeptical of Ms. Venet’s letter and sent her a “resident disability certification form” to be completed. Ms. Venet’s responses were generic, and in response, Riverbrook claimed that the “registration certificates and/or ID cards are not credible proof of any disability or any disability related need for assistance animal.
” The implications from Riverbrook’s position were that Mr. Fabode purchased the opinion from Ms. Venet, to show he ‘needed’ the ESA, rather than an honest medical assessment. Riverbrook claimed that Mr. Fabode’s proof was “not credible proof” of his disability or need for an ESA, but instead, argued that “Ms. Venet's response established that she had no contact with [Mr. Fabade] prior to May 31, 2018, same date she printed out the form letter declaring him to be disabled due to a “Differential Illness.” A person with a disabling mental or emotional condition will have a history of treatment that predates the request for an [ESA]. [Mr. Fabade’s] accommodation request is clearly his attempt to circumvent the community's requirement that the dog be permanently removed.”
In the subsequent eviction proceedings, Ms. Venet testified that she reached her conclusion as to Mr. Fabade’s disability and need for an ESA after one telephone call. Ms. Venet admitted having received no prior medical records and that she conducted no diagnostic testing. Venet also admitted that she provided no other counseling to Mr. Fabade and that diagnostic testing was “beyond her scope of practice.”
In what would later be considered reversible error, the trial court limited Riverbrook’s questioning of Ms. Venet, disallowing questions “into [Venet’s] medical decisions.” The trial court reasoned that the statutory language and case law. The trial court opined “the only thing required is that “a licensed counselor … makes a determination” and that all further questions were irrelevant.C. The Court of Appeals Reverses Finding That the Trial Court Was Required to Consider Evidentiary Concerns About Tenant’s Evidence of Disability and Need for Emotional Support Animal.
Through the course of appeals, the case made its way to the Michigan Court of Appeals. There, the appellate court first examined Fabode’s defense of a reasonable accommodation under the Fair Housing Act. (42 U.S.C. § 3604(f)(3)(B). In citing the statutory requirements for this defense, the Court of Appeals cited to case law from the United States Court of Appeals for the Sixth Circuit, that to show that a housing provider failed to reasonably accommodate a disability:
“… a plaintiff must prove that: (1) she suffers from a disability within the meaning of FHA; (2) the defendant knew or reasonably should have known of the disability; (3) the requested accommodation may be necessary to afford an equal opportunity to use and enjoy the dwelling; (4) the accommodation is reasonable; and (5) the defendant refused to make the accommodation.” Overlook Mut Homes v Spencer
, 415 Fed Appx 617, 621 (CA 6, 2011)
The Court of Appeals, recognized that the burden of proof rested with Fabode to establish that he (1) suffered from a handicap, and (2) required accommodation “to use and enjoy his dwelling” because of that handicap.” In assessing the evidence submitted at trial, the Court of Appeals recognized that he only submitted the one single letter from Venet. In addressing Venet’s testimony, the Court of Appeals said that she “provided no new evidence in the courtroom.” The Court of Appeals thereafter held that the trial court was “required” to consider the validity of the opinion presented in [Venet’s] letter and determine if the letter actually supported the Fabodes’ claim.”
The Court, in citing to Michigan Rules of Evidence (MRE) 702 (governing the admissibility of expert testimony and opinion), reasoned that because Venet’s testimony fell under this rule, the court must “ensure that each aspect of an expert witness’s testimony, including the underlying data and methodology, is reliable.” To ensure the reliability of expert testimony in determining factual issues, it is proper for attorneys to question, and for the courts to consider factors such as the “knowledge, skill, experience, training, or education” of the witness, that the “testimony is based on sufficient facts of data,” that “the testimony is the product of reliable principles and methods” and that “the witness has applied the principles and methods reliably to the facts of the case.”
The Court of Appeals determined that the trial court “avoided their gatekeeper role under MRE 702 despite Riverbrook’s repeated objections to the reliability and admissibility of the Fabodes’ evidence” (i.e., Venet’s letter and testimony). In summarizing the questions left open by the trial court’s failure to consider the factors in MRE 702, the Court of Appeals stated:
“It appears that this was not actually a diagnosis, but a statement that a diagnosis had yet to be reached. The letter did not identify any of the symptoms of Antony’s “differential illness.” The record is devoid of any information describing Antony’s purported handicap or disability. Did he suffer from anxiety or depression? Was he prone to psychotic episodes? The letter does not explain how King could assist Antony. Does King calm Antony? Does King sense when Antony might experience an episode of his condition? As the district court did not allow the record to be developed, neither the district nor circuit court nor this Court can assess whether Antony has a handicap and requires a reasonable accommodation by Riverbrook of its pet policy to allow King to live in the home and assist his owner.”
The Court of Appeals concluded these questions needed to be addressed by the trial court. Understanding that under the Fair Housing law, a housing provider may seek information from an allegedly disabled as to both the existence
of a disability and
of the reasonable accommodation (e.g., an emotional support animal). Noting these inquiries “need not be highly intrusive,” the Court of Appeals nevertheless understood that a housing provider may question the facts, methodology and conclusions of evidence and witness testimony to ensure reliability. Here, the trial court did not allow Riverbrook’s attorney to question the witness as to these factors. Nor did the trial court consider evidence and testimony that would have otherwise been determinative in addressing these factors. Therefore, Court of Appeals remanded the case back to the trial court with instructions that it “must carefully consider the reliability of the methods employed by Venet, as well as her final opinion.”D. Conclusion and Future Considerations for Housing Cooperatives.Riverbrook v Fabode
should be looked at as a reminder of the inquiries that housing providers, such as Housing Cooperatives and other housing and community-based Associations, may and should ask. These considerations, as the Court of Appeals reiterated, stem from federal authority from the Sixth Circuit Court of Appeals application and interpretation of HUD and the Department of Justice (“DOJ”) of the FHA and permitted inquiries in questions involving reasonable accommodation requests, whether or not for an emotion support animal. Consistent with legal authority:
“A housing provider . . . is entitled to seek information from an allegedly disabled person in order to establish the existence of the disability and the necessity of the accommodation. According to the [Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 14, 2004), available at (accessed September 11, 2020)],
[I]n response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the [FHA’s] definition of disability . . ., (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.
Id. at 13. This inquiry need not be highly intrusive. “In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary . . . .” Id. at 13-14. [Emphasis added.]” No. 349065, 2020 WL 5580152 (Mich. Ct. App., Sept. 17, 2020) (citing Overlook Mut Homes
, 415 Fed Appx 617).
For now, we at least know that housing providers can ask questions when presented with a reasonable accommodation request, an alleged disability and alleged necessity of an emotional support animal. Whether or not the person making such request is responsive, there is now more authority for housing providers to rely on, if the case proceed with litigation.
By: Matthew T. Nicols
Attorney at Pentiuk, Couvreur & Kobiljak, P.C.
* Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with offices in Wyandotte, Michigan and Chicago, Illinois. Mr. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law. He is licensed to practice law in the states of Michigan and Illinois.