This article was posted on Saturday, Dec 01, 2018

Question 1: We have a ‘no pet’ policy. What documentation is accepted if a tenant claims to need a service animal? Is there a difference if it is an emotional support animal? There is one tenant at our property with “service animal” paperwork from their doctor. We are getting inquiries from other tenants who want an “emotional support” animal. Can we deny them this?
Answer 1: Yes, there is a difference between service animals and emotional support animals. This is a recurring question topic, and an area of law that continues to evolve through both legislative and court case developments. The issue of service animals and comfort animals is complicated and involves federal, state and sometimes local law. Federally, the Fair Housing Amendments Act and Section 504 of the Rehabilitation Act of 1973 require a housing provider to make or allow reasonable accommodations to its rules and procedures in order to provide an equal opportunity to use and enjoy one’s home. These federal laws are enforced by the Housing and Urban Development department (HUD).

In California, there are similar protections provided by the Fair Employment and Housing Act (FEHA) which is enforced by the Department of Fair Employment and Housing (DFEH).

Housing and Urban Development’s current guidelines for subsidized multifamily housing blend the separate concepts of ‘Service Animals’ and ‘Emotional Service Animals’ (ESAs) under the category of “assistance animals”. Assistance animals are animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or animals that provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability.

As described by the HUD website, an assistance animal is not a pet. It is an 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. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. For purposes of reasonable accommodation requests, neither the Fair Housing Act nor Section 504 requires an assistance animal to be individually trained or certified.  While dogs are the most common type of assistance animal, other animals can also be assistance animals.”

If a prospective tenant has an actual ‘service’ animal, it is not a pet, and cannot be excluded from the premises. Service animals and ‘comfort’ pets are two different beasts, so to speak. A service animal is a highly trained dog, and is accorded statutory rights to stay with its owner. Comfort pets come under the ‘reasonable accommodation’ concept, and are evaluated on a ‘case by case’ basis.

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The question is whether or not the animal performs the assistance or provides the benefit needed as a reasonable accommodation by the person with the disability. Although these guidelines are specifically for multiunit subsidized housing, HUD has applied the same rules to private landlords. However, again, you will likely need specific legal advice from an attorney who can get the detailed facts from you in order to provide a detailed analysis that you can then act on.

Question 2: If a tenant had an enemy who kicked in their door such that it got damaged, can we require the tenant to pay for the cost to fix it before we repair it? Or do we have to repair it, then bill them and hope they pay for it later? If we have to do it first, can this happen over and over again such that we have to keep replacing the door so that it is “habitable”, while knowing that we’ll never be repaid? They have a very small security deposit, as the last owners didn’t require a large deposit.

Answer 2:  If the tenancy is not subject to rent control, terminating the tenancy of someone who generates that kind of activity might be the best for all concerned. Even if the tenancy is rent controlled, and ‘just cause’ is required, a repeat of that incident would probably justify a nuisance notice, and require the tenant to establish they are being the victim of someone they have no control over (in which case it’s a police matter and a different analysis). But if this is the result of their circle of ‘friends,’ the tenant would be responsible. However, almost certainly, the tenant would be entitled to have the door repaired, for security reasons, and then it’s a battle between who should pay for it.

Interesting question, but one I hope the vast majority of AOA members will not need to ask.

Question 3: We currently have in our lease agreement with all tenants a provision that allows units to be inspected every six months to ensure the maintenance is current in all units. All tenants have signed and agreed to these terms.  However, reading a few blogs on the California landlord inspection code has got me questioning whether this practice is within the landlord’s rights.

Answer 3:  Such inspections are a good idea, and the tenant can agree to them, but they may not be compelled if the tenant resists. There is an annual right to inspect to make sure the smoke and CO2 alarms are in order, at which time you can also ‘look around’ for a general perspective on the condition of the unit. But again, as good an idea as it may be to have the tenant agree to semi-annual ‘general’ inspections, such a term is unenforceable in a residential rental agreement.

Question 4: My son, wife and I each own one third of a duplex. I would like to transfer our two-third interest to my son. Which option is the best – a quit claim, a life estate or an outright sale? We appreciate your advice!

Answer 4: Your situation is beyond the scope of the AOA Q&A forum, which is designed for general questions faced by landlords regarding their tenants or other rental issues. But generally, I recommend speaking with an estate planning attorney who can assist with the method of transfer and also advise regarding tax impacts on your transfer. Thoughtful considering and then choosing the ‘right’ method of transfer or real estate interests can make a huge difference in your property tax, income tax and eventually in your estate tax.

Question 5: I am offering an apartment for rent while the existing tenants still live there.

Is it okay and legal to include the following sentence when I advertise on-line the apartment for rent, (as I can not respond to all replies and maybe for preliminary screening purposes):
“Please tell a little bit about yourself, and if applicable, about your roommate(s) as well”.
Also, do I have to reply to all emails?
Answer 5: Because the rules governing housing discrimination allow an applicant to easily allege a violation, I caution against the lessor seeking any kind of information that can be seen as ‘subjective’ or is outside the narrow confines of rental history, employment and current income (which are about the only areas a lessor can inquire about).

As to replying to all email inquiries, I don’t believe there is any such requirement. The only way I can see a problem is if the applicant’s email address is somehow able to be considered ‘ethnic’ and a lessor systematically declines responding to such emails, though such a scenario is unlikely.

Question 6: I attended an AOA seminar on Costa-Hawkins. I thought the meeting was great and informative. However, I have one question with regards to the Costa-Hawkins Act. I manage a 20-unit apartment building in Concord and our rents are 30% below market but I’m unable to increase them due to Governor Brown’s price gouging rule that is in effect until December 4, 2018. Provided Proposition 10 passes and since all of my tenants are on month to month lease who have been residing here more than a year, can I provide them with a 60 days’ notice to renovate and rent them at market rate? Since Proposition 10 will dictate rent increases but not necessarily Ellis Act Law?

Answer 6: I am not sure how the emergency control act you mention (due to the wildfires last year and extended due to the ones this year) and the Ellis Act and the Costa Hawkins Act relate to your question. The price control simply limits rent increases to less than 10%, regardless of other considerations such as rent control etc. If Costa-Hawkins is repealed (which we will know either way by the time this edition reaches members),  I don’t see any impact on your building, unless it is built after 1995 and Concord elects to institute rent control (in which case, the protection from local rent control for buildings built post-1995 would be removed). And the Ellis Act allows landlords go out of the rental business altogether, regardless of any other provision of state or local law, so I don’t see any relevance to that Act in your question.

 Question 7: I’ve got a triplex in Vallejo and a four-unit in Martinez, CA. Am I required to provide Prop 65 information booklet and/or warning signs on my properties. If it’s not required, is it still a good idea or overkill for a small landlord?

Answer 7: According to my research, Proposition 65 applies only to businesses with 10 or more employees. There is a pending ‘apartment regulation’ that will allow for Prop 65 warning signs to be replaced by lease language, but it will only apply to housing providers who employ more than 10 people. But, as you mention, there probably is no harm in posting the warning signs if you have any reason to believe the warning may apply.

 Question 8: Is it ok to accept third party payments for rent? For example a trust would send monthly payment for the tenant. If so, what is the best form of payment for this type of situation?

Answer 8: If you accept rent from a third party on behalf of the tenant, that can sometimes create issues in rent-controlled tenancies related to rent increases when the original tenant moves out and leaves subtenants behind. But in your non-rent controlled tenancy, it may still be a good idea to notify both the tenant and the third party payer that you are only accepting payment on behalf of the tenant from the third party as a courtesy and no landlord tenant or other relationship is to be inferred or created solely by that courtesy accommodation.

Question 9: I have a very good tenant who pays on time and she has a one-car garage that came with the unit, but she doesn’t use it. So, she has let a friend use it for storing a small camper trailer. The problem is that the couple will come and stay for two or three hours in it and also sit outside in front with a dog. I have had a couple of complaints and I would like to evict them.

Answer 9: Have you notified your tenant about your complaint and asked that she terminate that use? If she is a good tenant, why terminate her tenancy if she can solve the problem? Good tenants, as they say, are hard to come by!

Question 10: An applicant is on Section 8 housing assistance and wants to do top-offs, but is that legal? If I do that it will be off-lease? Or can I have one lease for Section 8 and another signed lease showing higher (true) rent between tenant and myself to protect me in case I need to file unlawful detainer?
Answer 10: First, I am not familiar with the term ‘top offs.’ But assuming it means something extra beyond the specific lease terms, I would not engage in any undocumented (or separately documented) agreements or terms with a Section 8 tenant, as doing so risks including you in any fraud investigation the housing authority might undertake. Also, such ‘side agreements’ are almost certainly unenforceable as violations of public policy, and any rent received in excess of the Section 8 agreement would likely result in an order to refund the rent to the tenant should those facts come to light.

Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-871-0070; email [email protected] or by visiting the website