NOTE: This Article was authored by Ashley Peterson and published in the American Bar Association Young Lawyers Division “TYL In Focus” Real Estate Edition for June 2018. The original publication can be found here: TYL In Focus June 2018
Recurring questions in leasing surround the landlord’s pet policy: If there is a strict no-pet policy in a lease or declaration of restrictions, under what circumstances are animals allowed in the unit? What happens if the tenant requests a reasonable accommodation to have a service dog or companion animal in the unit? Landlords must comply with the law and not discriminate against potential tenants on the basis of a purported disability. There are no bright line laws, and each case is fact specific. Knowing the legal basics will be the start to helping clients make the right decisions.
The term “disability” under the Americans with Disabilities Act (ADA) is broadly defined to include any physical or mental impairment that substantially limits a major life activity. (28 CFR Part 36, §36.105.) This definition is further echoed in the California Fair Employment and Housing Act. (2 Cal. Code Regs. §11065.) All landlords, property managers and homeowners associations in California must comply with ADA and FEHA regulations in renting residential properties. These regulations apply to hosts listing their properties on short-term vacation rental sites, such as Airbnb and VBRO, because such activities would qualify as leasing of a public accommodation. (28 CFR Part 36, §36.201.)
Reasonable accommodations are exceptions to rules or policies to allow persons with disabilities to have an equal opportunity to use and enjoy a dwelling. This means residential housing providers must make exceptions to a no-pets policy to allow persons with disabilities to use and live with a service or emotional support animal if requested.
Under the ADA, a service animal is a “dog individually trained to do work or perform tasks for the benefit of an individual with a disability.” (28 CFR Part 36, § 36.104.) These special services include assisting the blind with navigation, alerting the deaf to the presence of sounds, pulling a wheelchair, and fetching dropped items. The ADA’s definition of a service animal does not include animals that provide emotional support or comfort that are not specially trained. Service dogs are not considered pets, so they do not fall under any lease’s or condo rules’ no-pet policy, nor are they required to wear a vest to identify themselves. Housing providers are required to make a reasonable accommodation for service animals if requested.
Under the FEHA, reasonable accommodations must be made for all assistive animals, which is a broader definition than the ADA and includes service animals and support animals. (2 Cal. Code Regs. §11065.) “In California, denial of a reasonable accommodation request for a service animal or support animal could constitute unlawful discrimination. (Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission, (2004) 121 Cal.App.4th 1578.)
To make a reasonable accommodation request, tenants should send a written request to the housing provider asking for an exception to the no-pet policy in their unit to allow a service animal or support animal based on their disability. The housing provider is entitled to ask for a copy of a doctor’s letter stating that this service or support animal is a necessary accommodation given the tenant’s disability. Housing providers cannot ask the tenant to provide medical records, inquire about the tenant’s disability, or speak with the doctor about this disability as privacy rights protect that information. To determine if the animal is a service animal or support animal, the only questions a landlord can ask are: (1) Is the animal required because of a disability of the owner? and (2) What tasks has the animal been trained to perform? If the disabled individual provides a doctor’s letter, and the service or support animal does not pose a direct threat to others, does not cause substantial physical harm to the property of others, or impose an undue or financial burden on the housing provider, the housing provider must allow this animal to reside in the unit as a reasonable accommodation.
A housing provider cannot require an individual with a disability who has requested a support or service animal to charge a pet deposit or additional fee for allowing the animal in the unit. Doing so violates ADA and FEHA. A landlord’s only recourse is that the disabled person requesting the accommodation will be liable for any damage to the premises or facilities her animal causes. (Civ. Code § 54.2.) As with all animals, service animals and support animals must also comply with local city and county regulations regarding licensing and vaccinations. Thus, a landlord would be permitted to request the tenant provide proof of the support or service animal’s vaccinations and licensing. Additionally, landlords can impose reasonable restrictions on tenants including mandating that: all animals be kept on a leash while in public common areas, owners pick up after their animals, and the animal cannot create a nuisance.
Landlords should contact an experienced attorney before taking any action regarding a tenant’s request for a reasonable accommodation concerning a service or support animal. Violations of the FEHA and ADA can result in a complaint being filed against the landlord with the Department of Housing and Urban Development (HUD), with the Department of Fair Employment and Housing (FEH), or with the Superior Court. Complaints lodged with HUD or FEH must be filed within one year from the last date of the discriminatory act.
This article is intended for informational purposes only and does not constitute legal advice. This article discusses issues applicable under California law only and is not intended to apply to laws in other states.