Q: I don’t allow pets in my apartments.  One of my tenants has a cat that she claims is a therapy cat and she wants me to allow her to have the cat in her apartment.  Is my tenant’s cat really considered a service animal and do I have to let her keep it?

There are a few different laws that apply to landlords inCaliforniawhen it comes to tenants with disabilities and they have different definitions of what a service animal is.  The answer to these questions depends on which law applies, and that can be a tricky question.

Under the Americans with Disabilities Act (ADA), a service animal is defined 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.  Thus the ADAdoes not include cats or other species of animals as service animals under their definition (with the exception of trained miniature horses in certain areas).  The ADAdoes not include emotional support animals as “service animals” under their definition.  So if only theADA applies to you as a landlord then your tenant’s cat would not be considered a service animal and it is possible that you would not need to allow her to have the cat.

However, the Fair Housing Act (FHAct) and Section 504 of the Rehabilitation Act (Section 504) of 1973 define assistance animals as any animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.  This definition includes not only service animals as defined by theADA, but also a lot of other animals.  Assistance animals are sometimes also referred to as service animals, assistive animals, support animals or therapy animals.  Assistance animals are not considered pets by the FHAct and Section 504.  If the FHAct or Section 504 applies to you as a landlord you should consider two questions: (1) did your tenant tell you she had some sort of disability, and (2) does your tenant have a disability-related need for an assistance animal?  If the answers to both of these are questions are yes you would be required to modify your “no pets” policy and allow your tenant to have her therapy cat with her.

This is a tricky area of law and if you are unsure your best way to deal with the situation, tell your tenant you will get back to them as soon as possible, and immediately consult a landlord/tenant attorney.  Violating a tenant with a disability’s rights can result in serious consequences so exercise caution and be respectful when handling a tenant’s request to have a service animal.

Q: What if I don’t know if my tenant has a disability? 

You are permitted to ask your tenant who has a disability, if that disability is not readily apparent or known, to provide reliable documentation of the disability and their need for an assistance animal.  You may not ask the tenant to describe their disability to you or explain how the animal will assist them.  If the tenant does not provide documentation of their disability when they request permission to have the service animal, simply request the documentation for your file before you make a decision on whether they may have the service animal.  If they then provide you with a doctor’s note that states that they have a disability and require a service animal you should allow them to have the animal in their rental unit, regardless of whether you have a “no pets” policy or not.

Q: My tenant moved a pit-bull terrier into her apartment and is now trying to claim that her pit-bull terrier is a service animal.  I know that my other tenants will not be happy if I allow the pit-bull terrier to stay.  What can I do?

Under the FHAct and Section 504 you may deny your tenant’s request to have a service animal if the specific assistance animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation or if the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.  Breed, size, and weight limitations cannot be applied to an assistance animal.

Thus, the fact that the other tenants will not be happy if you allow the service animal is not enough.  Or if you have a no pit-bull policy, that is also not enough.  The dog must pose some objective threat that cannot be reasonably accommodated.  For example, if the tenant has tried locking that specific pit-bull terrier on her patio and that specific dog broke the fence, got loose, and tried to attack another dog, that could be enough objective evidence to deny the pit-bull terrier as a service animal.  Your determination of whether to allow the dog must be related to the specific dog and not a general assumption you have about that breed of dog.  Try to be reasonable in making your decision to accept or deny the animal in this situation, and base your decision only on your experiences with that specific dog.  It is not enough that a different dog of the same breed acted violently, you need to make your decision about the specific animal your tenant would like to have.

Q: Can I charge my tenant a pet deposit, pet rent, or other fee if I allow the service animal?  I already charge these fees to my other tenants.

No.  Remember, a service animal is not considered a pet so you cannot charge the disabled tenant the same fees you would charge a tenant with a pet.  Further, a request for accommodation of a service animal may not be unreasonably denied or conditioned on payment of a fee or deposit or other terms and conditions applied to applicants.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 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 info@landlordslegalcenter.com.

 

 

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