Hello everybody.  I frequently receive calls from AOA members expressing great frustration with tenants bringing dogs into their apartments claiming that their canines are exempt from the landlord’s “no pets” policy as the animals are service dogs.

Unfortunately for housing providers such as owners and management companies, true service dogs (and various types of comfort animals) are, in law, exempt from such a no-pet policy when they assist a tenant’s disability. Occasionally a disabled tenant will have a true service animal, such as a seeing eye dog. But the abuse by tenants falsely claiming a disability to justify “fake” service dogs or comfort animals, is rampant. 

Just recently, on September 12, 2017, the California Court of Appeal revisited the law pertaining to service animals.  The justices explained that a “service animal” means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.  Recognized disabilities include physical, sensory, psychiatric, intellectual or other mental ailments.

In that new case, known as Miller v. Fortune Commercial, the Court unanimously ruled that for the exemption law to apply as to a service dog, the dog’s training must have been completed.  A canine who is in the process of being trained to be a service animal, but whose training has not been completed, does not qualify as a service dog.

The appellate court discussed the service dog law under both California and federal legislation.  That law is complex, but I will try to explain it as simply as possible.

Types of Animals

In general, there are three types of animals in issue, namely: service animals, support animals and pets.  Under law, true service animals and true support animals are not considered to be pets.

A service animal is a dog that is trained to perform services for a person with a disability, such as guiding a blind person, alerting a deaf person to an imminent hazard, fetching dropped items, opening doors, ringing doorbells, pulling a wheelchair, activating elevator buttons, steadying a person while walking, helping a person up after a fall, and assisting someone who is having a seizure.

As defined in the federal American with Disabilities Act (“ADA”), service animals in the context of public accommodations are defined as “Dogs individually trained to do work or perform tasks for people with disabilities.”  Common examples are guide dogs and signal dogs, which assist with sight or hearing impairments.

Under the ADA and California law, in addition to dogs, a miniature horse (which typically weighs under 100 pounds) may also qualify as a service animal for an individual with a disability if the equine has been specifically trained to perform tasks or work for the benefit of the individual’s disability.  But AOA members typically do not encounter horses, so I will not further discuss them.

A support animal (sometimes referred to as a social animal, therapy animal, companion animal, emotional support animal, comfort animal and assistant animal) is an animal such as a cat, dog and bird, used to assist with therapy goals that help alleviate emotional or social symptoms of anxiety, depression, stress or difficulties regarding social interactions.  Support animals are not specially trained.  Their presence merely improves a tenant’s inability to otherwise live independently and fully use their living environment.

But in either case, whether it is a service dog or support animal, the creature must accommodate a person with a disability.  That means that the tenant (or rental applicant) must have a physical or mental impairment that limits (or in some cases “substantially” limits) one or more major life activities, or has a record of such an impairment, or is regarded as having an impairment.

A pet is a domesticated animal which is kept for pleasure rather than utility.  By definition, service dogs and support animals are not pets.

“No Pet” Lease Provision

Notwithstanding a “no pet” provision in a lease or rental agreement, a tenant with a disability who has a physical or mental impairment that limits one or more major life activities, is allowed by law to have a service dog or support animal live in that resident’s apartment unit.  Both federal and California state law trump and nullify any lease provision to the contrary.

If the tenant or rental applicant does not have a disability, then a “no pet” provision in a lease will lawfully prevent the tenant or applicant from bringing his/her dog or other animal into the unit.

Similarly, if the animal is a pet (because it does not fall within the definition of either a service dog or a support animal), then the “no pet” provision in the rental agreement may be enforced.

Questions That a Housing Provider May Ask

If it is not apparent or otherwise known to the lessor or management company  that the tenant or rental applicant has a disability (cf.: a blind person obviously has a disability), then the housing provider may pose the following questions to the tenant or applicant:

1.  Is your dog a service animal?  If so, is your dog required because of a disability you have?  If so, what work or tasks has your animal been trained to perform?  Has the training been completed?

2.  Is your dog (or other animal) a support animal? If so, do you have a disability that limits one or more of your major life activities?  If so, does the disability create a need for you to have your dog (or other animal) live with you?

Bear in mind, however, the housing provider may not inquire of the tenant or applicant about the nature of the disability.  The theory is that the disability is confidential and such an inquiry might impermissibly embarrass the tenant or the applicant.

Documentation That May Be Required

If the tenant or applicant who does not have an obvious disability (or a disability already known to the housing provider), requests that an animal be allowed to live in the apartment unit either as a service or support animal, the housing provider may require that person to provide documentation from a physician, psychologist or other qualified health provider that he/she has a disability and that the disability creates a need for him/her to have a service dog or support animal.  That is the current law.

That law may change in the future under a California legislative bill (AB 1569), which if ever passed, will allow stricter documentation requiring a “reliable third party verification of the disability” and a “reliable third party verification of the disability-related need for the animal.”  But for the present time, the documentation is sufficient if it is as stated in the preceding paragraph.

Other Related Matters

Both California law and federal law independently govern the right of a tenant to keep a service dog or support animal in a rental housing accommodation.  While there are differing nuances between the laws of the state and federal governments, one significant difference is that California’s definition of a disability is broader than federal law.  In California, the disability need only “limit a major life activity.”  It need not “substantially” limit a major life activity.  A “major life activity” includes a person’s physical, mental or social activities.

Contrary to California, the Federal Housing Amendments Act of 1988 requires that the disability “substantially” limit one or more major life activities.

With respect to multi-family residential units in California that AOA members own or manage, they should follow the more restrictive California law which prevents them, as the landlord or management company, from excluding such an animal if the tenant’s disability merely limits (without consideration of whether it “substantially” limits) one or more of the resident’s major life activities.

Also, a housing provider may bar a service dog or support animal from living in an apartment if (1) the animal will damage the property or is a danger to other tenants, and (2) no reasonable accommodation can be made for the tenant which would avoid those problems.

Concluding Remarks

A dog owner’s abuse of claiming an animal is a service dog when in fact it is not, is not just limited to apartment buildings.  When writing this article for AOA Magazine, I once again (as I did last year) interviewed a representative of American Airlines to inquire about its policy of allowing a dog to accompany a passenger during flight.

The spokesperson advised that if the passenger notifies the airline in advance of the flight that he/she will be bringing on board a service dog, American will allow it if either (1) the passenger provides American with a written note from a healthcare professional that the dog is a service dog for the individual, or (2) the dog wears a harness and the harness is appropriately marked with a tag or placard saying “Service Dog.”

On the other hand, the representative informed me that if the dog was for emotional support, the passenger would be required to provide a letter from a healthcare provider that the comfort animal was necessary for the mental or emotional stability of the passenger.

Fortunately, in the context of service dogs, landlords and management companies are not compelled to allow canines to live in a unit merely because the tenant outfits the animal with a harness and a “Service Dog” placard.

Perhaps some of the disparate treatment of service dogs versus support animals has to do with criminal penalties.  In California, it is a misdemeanor (and thereby theoretically self-policing), punishable by 6 months of incarceration or a $1,000 fine, for an owner to tag and represent that a dog is a service dog when knowing it is not.  No such similar criminal act is committed by falsely claiming an animal is a support animal.

Finally, bear in mind that only certain limited questions can be asked of the tenant, as discussed above, and a written memorandum or letter signed by an appropriate healthcare professional can be required if the person’s disability is not apparent or otherwise known to the housing provider.

 

Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 40 years.  He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.  He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.

Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell.  An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.       

The foregoing article was authored on October 2, 2017.  It is intended as a general overview of the law and may not apply to the reader’s particular case.  Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.

Questions of a general nature are warmly invited.  Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067.  Phone:  (310) 277-7300.