Q: I do not allow pets in my apartment complex. I have tenant who is claiming that her cat is a therapy animal and is requesting a reasonable accommodation. I do not think that allowing a cat in my apartment complex is reasonable.
A: A landlord must work with a tenant with a disability to make reasonable accommodations. If your tenant has a note from a doctor saying that he or she requires a pet for assistance with a disability, you should work with the tenant to comply with her request. Remember, an emotional support animal is not considered a pet.
Landlords in California are governed by various laws that have differing definitions of what constitutes a “service animal”. The answer to this question 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 ADA does 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 ADA does not include emotional support animals as “service animals”under their definition. So if only the ADA 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 (FHA) 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 the ADA, but also a lot of other animals. Assistance animals are sometimes also referred to as service animals, assistive animals, emotional support animals or therapy animals. Assistance animals are not considered pets by the FHA and Section 504. If the FHA 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 of 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?
A : 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 an emotional support animal. I’m afraid that my other tenants will view it as open invitation to bring in more pit-bull terriers. What can I do?
A : Under the FHA 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. Remember that breed, size, and weight limitations cannot be applied to an assistance animal.
Fearing that other tenants will follow this particular tenants example does not justify denying the tenants request for an emotional support animal. 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. If a tenant feels that you denied his request based on the breed, size or weight of the dog, it could seem like you are discriminating against that tenant and could potentially cause problems for you.
Q: Can I charge my tenant a pet deposit, pet rent, or other fee if I allow the service animal? I have other tenants that have pets and they paid the fees.
A: 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.
Q: I have a tenant who has an emotional support dog. Multiple tenants and maintenance workers have seen her not pick up her dogs waste. I know I can’t give her notice based on the fact that she has dog, but is there something else I can do?
A: A tenant cannot leave waste around the property. In your lease there should be a provision about maintaining the tenant’s unit and common areas in a clean manner. If your tenant is simply not cleaning up after her dog, or is refusing, you can give her a 3 Day to Perform Covenant or Quit. Even though the dog is an emotional support animal you can give her notice to perform because she is breaching the agreement by not cleaning up after her emotional support animal.
Attorney Franco Simone, of the LandlordsLegalCenter 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 firstname.lastname@example.org