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April 18, 2018

Support Animals for the Disabled -- Do's and Don'ts for Landlords

Disabled persons are permitted to be assisted by support animals on both residential and commercial rental properties, notwithstanding a landlord's rules to the contrary. Federal, as well as California laws,  provide for such assistance. The intent is not to give disabled persons more rights than others, but to allow them to enjoy equal opportunities and equal access.

In order to qualify to have a support animal, the person requesting it must fit within the definition of "disabled." In California, the definition is quite broad. It includes physical or mental impairments or medical conditions which limit a major life activity or a record of disability or being regarded as being disabled. Although one qualifies as disabled, there are still some restrictions on the use of a support animal. The use of the animal must be related to the disability and necessary because of the disability. This exception to the rules (or "disability accommodation") must be reasonable under the circumstances.

Residential Property

Request. A housing provider may not inquire as to whether a person is disabled and needs special assistance (such as the use of a support animal) unless the housing provider is operating under a federally-subsidized housing program specifically for the disabled, which requires proof of disability to qualify for the program. After qualification, the procedure does not vary between subsidized and non-subsidized properties. All rentals are subject to HUD/DOJ guidelines. Those guidelines changed on May 17, 2004. Now, although the preference is to have the resident put the request in writing, the new guidelines indicate that the landlord may not refuse a request if the resident does not wish to put it in writing. In that event, we recommend that the landlord document the request and attempt to get the resident to sign or initial that the writing is a correct statement of what they want. If the resident refuses to sign or initial, it would be wise to make a notation to that effect on the request.

Verification. Under the new HUD/DOJ guidelines, no verification is necessary if:
  1. the disability;
  2. the relationship of the request to the disability and;
  3. the need for the request is apparent.
For instance, if a person is obviously blind and wants to have a seeing-eye dog, in violation of a no-pet policy, the landlord would not need documentation to prove that it was reasonable to allow the animal. If any of the three issues above are not apparent, the landlord can, and should, ask for written verification. If an accommodation is allowed without sufficient verification for some and not others, the landlord could be accused of differential treatment.

Verifiers. The new guidelines also expanded the acceptable sources of verification. A resident may now verify from:
  1. a doctor or health care professional;
  2. a peer support group (there is no definition, but we think it is reasonable to think that it may mean Alcoholics Anonymous or similar organizations);
  3. a non-medical service agency (perhaps a group like the M.S. Society);
  4. a reliable third party (it is our opinion that this person's testimony should be sufficiently persuasive to hold up in court);
  5. "self-verification" (it is likely that providing something such as written proof of receipt of Social Security Disability Income would suffice).
Reasonableness. Once the verification is accomplished, the landlord should determine if the request constitutes a "reasonable accommodation." Reasonableness is determined by balancing the interests of the parties. How would denial of the request affect the resident v. how would approval of request affect the landlord? The landlord is not required to allow something that would create an undue burden or interfere with the nature of the operation of the business. Most requests for animals are deemed to be reasonable, notwithstanding a "no-pet" policy. Even if a landlord allows pets, the policies established for regulating pets do not apply to support animals:
 
  1. Don't require that the animal is trained. Although California's Unruh Act requires that business owners allow only animals which are trained, case law has included animals that provide emotional support as "companion animals" based on mental disability.
  2. Don't charge a pet deposit or any additional deposit because of the animal. If the animal damages the premises, the damage costs can be deducted from the ordinary deposit, as with any other damage expenses.
  3. Don't apply size, breed or quantity restrictions as you do with pets. Approval or denial should be based on whether having the animal(s) on-site is reasonable. A support elephant or rattlesnake would not be reasonable, but many unusual animals could be. Monkeys have been trained to perform tasks for the physically disabled. Pit bulls or Rottweilers (who are statistically more likely to bite) are often used as companion animals.
  4. Don't require compliance with pet rules, because a support animal is not a pet. However, landlords should be able to establish reasonable rules of conduct for support animals (which should not be more stringent than the property's pet rules).
  5. Note that certified trainers of service animals for the physically disabled are entitled to the same rights about the animal they are training as disabled persons would be.
  6. Have written policies in place, and document interactions with residents to reduce the chance of a lawsuit based on failure to accommodate. Our firm has drafted forms for disability accommodation policies and procedures, including a lease addendum for animals, which sets out rules of conduct and requires the resident to warrant that their animal is not dangerous.
Guests may bring support animals when they visit residents. If the disability, relation, and need are not apparent, it is a challenge to try to get proof that the animal is a support animal when it is there on a temporary basis. Unless the guest is on-site very often or for long periods of time, it may not be productive to try to address the issue. Management should focus on conduct instead.

Commercial Property

Commercial properties have fewer specific regulations on the issue of animals. The Americans with Disabilities Act (ADA) addresses areas to which the public is invited, and California's Unruh Act (Civil Code section 51 and following) addresses places that conduct "business" in the state. If you wish to read the text of the relevant laws, you can access them through a link to the Kimball, Tirey &St. John website listed below.

In spite of the fact that there is not as much detail available in the codes, it is clear that tenants of commercial property and members of the public who visit the properties are allowed to be accompanied by support animals. Just as with guests in residential property, the landlord does not have much ability to control visitors to the commercial property who claim that the animal they bring on-site is allowed as a support animal. The issues that would be worth addressing would likely relate to conduct of the animal.

With regard to tenants or employees of tenants, however, the landlord may reasonably exert some control. If a landlord wishes to establish rules which may be enforceable about the presence of animals, the rules should be in writing and should be part of the lease or addendum. If tenants or employees indicate that they are entitled to an exception to the rules based on disability, it is not clear that the procedure used in fair housing laws applies. Nevertheless, a landlord may be able to make a logical argument that to qualify for an exception, the tenant or employee should verify the right to the exception and, if that is so, the procedure used could resemble the one used for residents in rental housing.

Conclusion

Disability is the most common basis for discrimination complaints in California housing. ADA and Unruh Act violations are common claims made by visitors or tenants in commercial properties. These lawsuits are very time-consuming and expensive. If management personnel encounter a fact situation that could raise such issues, it would be wise to seek the advice of a supervisor and/or an attorney before taking action (or failing to take action)!

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