As a follow up to earlier posts on the Riverbrook v. Fabode case, the Michigan Supreme Court, in an order dated November 29, 2022, held that expert witness testimony is not required in all cases in which a person with a disability seeks a reasonable accommodation under Section 804(f)(3)(B) of the Fair Housing Act (FHA), 42 U.S.C. § 3604(f)(3)(B), or Section 506a of the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), M.C.L. § 37.1506a(1)(b). 

The Supreme Court vacated the Court of Appeals' judgment to the extent that it could be read as requiring expert witness testimony. According to the Court, "the [FHA and PWDCRA] contain no such requirement." 

This is a great result. As previously noted, persons with disabilities, especially tenants with disabilities who are unable except in rare instances to afford counsel, cannot afford the added expense of retaining a qualified expert witness to provide a disability certification. The Riverbrook v. Fabode case originated in a mobile home park in New Haven, Michigan. (A Google Earth photo of a portion of the mobile home park is shown at the top.) The case made its way through 4 Michigan courts (42-2 District Court, Macomb County Circuit Court, Michigan Court of Appeals, and Michigan Supreme Court). The mobile home part, Riverbrook, had legal representation in all four courts. In contrast, Abimbola Fabode and her brother, Antony Fabode, did not have legal representation until after the Court of Appeals' published decision. The Fair Housing Center represented the Fabodes without charge in filing a motion for reconsideration with the Court of Appeals and in all proceedings before the Michigan Supreme Court. The Center also filed with the 42-2 District Court a successful motion to vacate an order of eviction.   

The Supreme Court did not expressly address the Fair Housing Center's request that the Court order lower courts on remand to give deference to HUD's assistance animal guidance. FHEO-2020-1, Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (Jan. 28, 2020) ("HUD's 2020 Assistance Animals Guidance"). The Supreme Court, however, cited the federal court of appeals' unpublished decision in Overlook Mut. Homes, Inc. v. Spencer, 415 Fed. App'x 617 (6th Cir. 2011).  In Overlook Mut. Homes, Inc., the Sixth Circuit quoted from the Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004)("HUD/DOJ Joint Statement").  415 Fed. App'x at 8-9 & n.3. As such, it would appear consistent with Overlook Mut. Homes, Inc. for the lower courts on remand--and Michigan courts generally--in evaluating disability certifications to consider the HUD/DOJ Joint Statement, as well as HUD's 2020 Assistance Animals Guidance issued after the Overlook Mut. Homes, Inc. decision.     

While further proceedings will take place on remand, the Michigan Supreme Court's order is very good news for Michigan residents with disabilities who need reasonable accommodations as to their housing. 

The Fabodes and the Center appreciate the outstanding amici briefs filed by the Michigan Civil Rights Commission and the Michigan Department of Civil Rights (authored by Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicited General, and Tonya Celeste Jeter and Ron D. Robinson, Assistant Attorney Generals) and the amici briefs filed by the Fair Housing Centers of Southeast and Mid-Michigan, West Michigan, and Southwest Michigan (authored by Beth M. Rivers and Robin B. Wagner, of Pitt McGehee Palmer Bonanni & Rivers).  

• Riverbrook v Fabode, No. 162330 (Mich. Supreme Ct. Nov. 29, 2022), vacating in part, affirming in part, and remanding, 333 Mich. App. 645; 963 N.W.2d 415 (2020)
• Riverbrook v Fabode, 333 Mich. App. 645; 963 N.W.2d 415 (2020)
• Overlook Mut. Homes, Inc. v. Spencer, 415 Fed. App'x 617 (6th Cir. 2011)
• FHEO-2020-1, Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (Jan. 28, 2020)
• Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004)