By Karen Fornash (CalDRE #01982864)
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December 16, 2020
Many of our owners have “no pet” policies and, until recently, those policies were generally a non-issue, since most exceptions were made for obvious service animals like guide dogs for the blind. The landscape is changing, however, and today’s exceptions have met challenges on both federal and state levels. Tenants and their advocates have asserted challenges ranging from the types of animals permissible to the scope of support the animal provides. They have also challenged what qualifies as “acceptable proofs of support.” Court rulings have leaned strongly in favor of tenants, leaving an open minefield that landlords now need to navigate. To avoid being sued for a fair-housing violation, landlords need to understand the inherent risks of dealing with pet policy exception requests. Simply asking your tenant the wrong question or wrongfully denying their request under your building’s “no pet” policy could result in an expensive lawsuit. This is an area of landlord/tenant law that is highly sensitive and fraught with legal risk. Below we briefly explain the rules and regulations you need to know. Most importantly, if you receive a request for accommodation of a support/service animal, contact your assigned Forbes Group Portfolio Manager prior to responding to the tenant. Which Laws Govern Support Animals and Service Animals? Federal laws under the Federal Housing Act (“FHA”) and Americans with Disabilities Act (“ADA”) control when a tenant requests the “reasonable accommodation” of a service/support animal in property that has a “no pet” policy. The laws under FHA and ADA provide tenants with protections that allow them to enjoy the residence on an equal basis with tenants who are not disabled. While state laws are narrower in their definition of “service animal”, federal law does not limit the type of animal that can be a service/support animal. Nor does federal law require that the animal have any specialized training. The only requirement is that the service animal assists the tenant with his/her disability. While California law is narrower in defining which animals are permissible as support animals, a landlord relying on California law would be exposed to a violation of federal laws. As a result, a landlord complying with the less-broad California requirements may find themselves in violation of federal laws. What is a Disability? A disability can be physical, mental or emotional. The legal definition states that it must be “[A] physical or mental impairment which substantially limits one or more major life activities. A major life activity is defined as things like “as caring for one’s self(sic), performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” For instance, an emotional disability such as anxiety or depression “limits one or more major life activities” and, as such, would entitle an individual to claim that they are disabled and that the support animal provides them with the ability to take on tasks that they would otherwise be unable to. However, asking a tenant if they are disabled, the severity of their disability or even what their disability is, is a violation of California law and can expose a landlord to liability. Landlords are limited to requesting some documentation as to how the accommodation of the support animal will permit use and enjoyment of the property. That being said, they cannot force the documentation to be provided and cannot unreasonably delay processing of a tenant’s application pending receipt of any such documentation. Service vs. Support/Companion Animals The term "service animal" refers to an animal that has specific training to assist a disabled person, e.g. a guide dog. The term "support animal" or "companion animal" is one that assists a disability but is not required to have any special training e.g. an animal that eases anxiety; or helps ease depression. What Verifications are Permitted? If a tenant has an obvious disability you cannot request any verification. For example, a blind tenant requests a reasonable accommodation for their guide dog. For a tenant with no obvious disability, you may request that he/she verify that he/she is disabled but you may not ask about the nature of the disability. Doing so is a violation of California law and exposes you to liability. Proofs of disability may be limited to documentation (e.g. a copy of a disability check) or a verification from any third party that is in a position to know of the disability. It does not have to be a medical certification. It could be anyone that has knowledge of the tenant’s disability, including a family member. A landlord may also ask for information that demonstrates the relationship between the requested accommodation of a service/support animal and the person’s disability. It’s important to note however, that the scope of this description is also protected in that you’re not entitled to know any specifics about the disability should the tenant choose not to disclose. Permitted Service Animals A tenant can at any time during their lease term request accommodation for one or more animals. While they will still need to demonstrate how the addition of a second service/support animal supports their disability, precluding additional support/service animals on the basis of a pet restriction policy within the building is not permissible. The type of animals that are permitted to serve as support/service animals is an open item in the courts. Because no restriction on the type of animal has yet been determined, currently any animal can in fact be considered to be a “reasonable accommodation” provided: The animal “facilitate a disabled individual’s ability to function”; The accommodation “survive a cost benefit analysis that takes both parties needs into account”; and The animal it is not a risk to others, or illegal. Specialized training has been determined by the courts not to be a requirement. All that is required is that the service/support animal “affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability”. For instance, a cat that helps with anxiety; or a dog or a monkey that helps alleviate depression. The only actual restrictions on the types of animals that qualify as service/support animals are: An animal with an existing pattern of aggression. It’s important to note that a landlord cannot determine aggression by breed. Rather, in the case of a dog, there must be a history of aggressive behavior. Dangerous animals e.g. rattlesnakes or tigers. Illegal animals, e.g. ferrets in California This means that any animal that is not either aggressive, dangerous, or illegal may be a service/support animal. If there is an issue of aggression, or accommodation of the animal is unreasonable, then the landlord has a duty to engage in an “interactive process” with the tenant to try and find an alternate accommodation. For instance, if a landlord’s insurance company does not permit aggressive breeds and will not provide the landlord with a waiver on the breed restriction, then the landlord has a duty to try and resolve the issue with the tenant by perhaps suggesting an alternate breed of dog. Recognizing this is a hot-button issue, the California Department of Fair Employment and Housing is currently working on fair housing regulations that may further address this particular issue. Ultimately, if the landlord is unable to resolve an issue in connection with a request for the accommodation of a service/support animal with the tenant, then the advice of legal counsel should be sought before denying the tenant’s request. When is a Request Unreasonable? Important to note is that if a landlord considers a request for accommodation unreasonable, then he/she must try and negotiate a solution with the tenant for an alternative accommodation. Simply declining is not an option. Generally, however, for a landlord to assert a request for an accommodation is unreasonable he/she has the burden of demonstrating: The request will impose due financial or administrative burden on the landlord; Accommodation of the request would fundamentally alter the nature of the operation; or The request creates unreasonable health and safety risks. None of this should be taken lightly. Denial of a request for the accommodation of a service/support animal should be done with the guidance of legal counsel . Furthermore, landlords should be aware that delaying responding to a request for a reasonable accommodation is also a violation of fair housing rules and regulations with exposure to significant legal risk. What is Permitted? You may request (but cannot demand) that a tenant sign a Pet Addendum outlining the rules and regulations specific to the pet i.e. picking up after the dog, etc. Requirements, however, cannot cause the use of the animal in its supportive role to be limited. For example, if the animal is unable to support the disabled tenant by being on a leash that rule cannot be part of the Pet Addendum. Restrictions from certain common areas, e.g. pool, is also not permitted. A landlord may, however, hold the tenant responsible for any nuisance issues that the animal causes to other residents. As would be done for any other violation under the lease, the must give the tenant time to correct an issue before taking steps against the tenant. You may request (but cannot demand) verification as to the need for the accommodation if the disability is not obvious. You may deduct from the tenant’s security deposit for any damage done by the service/support animal but you cannot request any additional fees or security deposit monies from the tenant. Tips from the California Apartment Association: 1. Don’t ask the tenant about their disability. 2. If a tenant requests an animal as an accommodation for their disability, ask how you, as the property owner, can be sure that it is a service animal and not just a pet, so that other tenants don’t feel unfairly treated. 3. Ask tenants who make a request, to put the request and any information regarding the animal in writing. Keep these documents on file. 4. If you are skeptical about tenant’s disability, or whether the animal really helps the tenant, consult an attorney familiar with fair housing laws. 5. Don’t require the applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant to keep the assistance animal. If you are not currently a client of Forbes Group Property Management, contact us to discuss the benefits of professional management by a company with over 25 years of property management experience in Silicon Valley. Experience matters! e. info@forbesgrouppm.com p. (408) 399-5252 Notice & Disclaimer: Information provided is current as of December, 2020. As local and state laws and regulations are subject to change, this information should not be relied upon for purposes of taking any legal action. Any legal action should be taken under the advice and counsel of a licensed California attorney.