Eviction; The Fair Housing Act; Discrimination “because of a handicap”; 42 USC § 3604(f)(3)(B); Overlook Mut. Homes v. Spencer (Unpub. 6th Cir.); “Handicap” or “disability”; § 3602(h); 24 CFR § 100.201; “Major life activities”; § 100.201(b); “Emotional support animals”; Expert testimony; MRE 702; Elher v. Misra

In this eviction case involving a dispute over whether a defendant-tenant’s (Antony) dog qualified as an emotional support animal (ESA), the court found that the district and circuit courts did not fulfill their gatekeeping role under MRE 702. Thus, it vacated the circuit court’s order affirming the district court’s judgment denying the writ of eviction, and remanded. Plaintiff-landlord sought to evict defendants because it suspected the dog was a forbidden breed in its mobile home community. Defendants raised the Fair Housing Act (FHA) as a defense. Thus, they had to prove “that Antony had a ‘handicap’ and required accommodation ‘to use and enjoy his dwelling’ because of” it. The only evidence they offered was a letter authored by a limited license professional counselor, V. “Contrary to the district court’s conclusion, the court was required to consider the validity of the opinion presented in the letter and determine if” it actually supported defendants’ claim. While the circuit court relied on a Sixth Circuit case, Overlook, this case held that “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.” Consistent with this, plaintiff asked defendants for such information. V’s letter stated “that Antony suffered from ‘differential illness.’ 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 lacked any information describing his “purported handicap or disability.” Further, the letter did not explain how the dog could assist him. The court concluded that the “statute does not provide that a tenant may automatically establish a handicap and a need for an ESA with a simple letter or that the court may not delve into the accuracy or legitimacy of the diagnosing party’s opinion. Under MRE 702, the court must carefully consider the reliability of the methods” V used, in addition to her final opinion.