Definitions Used in This Article:
Assistance animal is a term used to describe both 1) a service animal and 2) a support animal also known as an emotional support animal.
Service animal is defined by the American Disability Association (ADA) as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”
Support animal or emotional support animal provided by HUD is “other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.”Reasonable accommodation is defined by the U.S. Department of Housing and Urban Development (HUD), as “a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces
Q: My insurance company is refusing to cover my rental property because of my tenant’s emotional support animal. What can I do?
A: HUD and the Department of Justice released a joint statement that states a reasonable accommodation request (such as a tenant having an assistance animal) is unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations. If an insurance carrier would increase costs, cancel or cause an adverse change in the policy terms, this is seen as an undue financial and administrative burden. However, you are also supposed to determine whether comparable insurance is available in the market.
Q: My tenant’s dog is an assistance animal. Can I charge a pet deposit or a higher deposit?
A: No. Assistance animals are not considered pets, so you cannot charge the tenant the same fees you would charge a tenant with a pet. Further, a request for an accommodation of a service animal or emotional support animal may not be unreasonably denied or conditioned upon payment of a fee or additional deposit.
Q: I have a weight limit of 30 pounds for all pets in my apartment complex. Can I apply this weight limit to emotional support or service animals?
A: No, you cannot limit the weight of an emotional support or service animal in accordance with your lease provisions or pet addendum. The emotional support or service animal is not a pet so your regular rules regarding pets do not apply to these animals. This includes all restrictions on weight, breed, and size of these animals.
Q: I received multiple complaints from my tenants about another tenant’s emotional support animal. What am I required to do?
A: Even though your tenant has an emotional support animal, he is still responsible for complying with all provisions of the lease/rental agreement and cannot cause or allow a disturbance of her neighboring tenants if your lease/rental agreement prohibits it. Further, the tenant’s animal cannot cause a nuisance. So, you may be able to serve the tenant with a notice to perform covenant or quit, if your lease/rental agreement prohibits the tenants from disturbing surrounding tenants or a notice to quit for nuisance if the animal is causing a nuisance. Please contact a Landlord/Tenant attorney prior to serving such notice.
Q: I do not allow pets at my property; however, I received a reasonable accommodation request from a tenant requesting that I allow her to have a support animal. Do I need the tenant to sign a pet addendum?
A: No. Support animals are not considered pets, so a pet addendum is improper. There are many landlord associations or agencies that have assistance animal addendums that may be helpful. Please contact a Landlord/Tenant attorney prior to using any assistance animal addendum. [Members may download AOA’s Form 122, Companion-Assistance Animal Agreement for free by visiting www.aoausa.com.]
Q: A tenant asked me for a reasonable accommodation for their service poodle and I denied the request because she failed to provide me with any documentation. The tenant mentioned that she was going to file a DFEH complaint. What does that mean?
A: As a landlord, when you receive a reasonable accommodation request from a tenant you must engage in an interactive negotiation process to discuss and evaluate the request before you deny it. For guidance on how to evaluate a reasonable accommodation request for a service animal, review HUD notice FHEO-2020-01. In California, a tenant can file a complaint with the California Department of Fair Employment and Housing (“DFEH”) if the tenant believes that the landlord improperly denied the reasonable accommodation request. The DFEH will investigate the claim and suggest mediation. The tenant may also file a Federal complaint with Housing and Urban Development (“HUD”). HUD will investigate and offer alternative dispute resolution. It is your responsibility, as the landlord, to prove that you acted in good faith during the interactive process. It is also possible the tenant will file a lawsuit. If you receive a DFEH or HUD complaint, please contact a Landlord/Tenant attorney.
Attorney Franco Simone, of Simone & Associates and The Landlords’ Legal Center, has been doing evictions for over 20 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday – Friday from 9:00 AM to 5:00 PM. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected].