Tenant Relocation during Maintenance & Repairs

Once a property owner has entered into a rental agreement with a tenant and has handed over the keys, the tenant has the exclusive right to possession of the dwelling unit. Moreover, when tenants enter into the rental agreement, the owner agrees to provide the premises (in a habitable condition) in exchange for the tenant’s obligation to pay the rent and comply with the terms of the agreement. But what happens when the unit must be vacated for a short time during an ongoing tenancy to allow for maintenance or repair?

As a general rule, when a unit must be temporarily vacated, the owner is not entitled to receive rent from the tenant. In other words, payment (rent) cannot be collected for something that cannot be provided (the dwelling unit). Depending on the circumstances, additional compensation from the owner to the tenants (relocation costs, incidentals, etc.) may be appropriate. This depends primarily on who caused the problem that necessitates the unit be temporarily vacated.

Why Does Fault Matter

Determination of fault is an important factor to ascertain the extent of the obligation to compensate the tenant who must be relocated. Although the property owner is not the guarantor of the tenant’s continued shelter, if the problem that requires the unit to be vacated was caused by the owner’s negligence, the owner may be held responsible for providing comparable replacement housing during the repairs. This responsibility may include incidentals such as meals, if there are no cooking facilities at the alternate housing and boarding for pets. By contrast, if the problem is not the result of the owner’s negligence, the tenant may only be due a rent rebate from the owner.

Whose Fault Is It Anyway

A variety of situations may require the unit to be vacated in order for repairs to be made, including flooding of the unit, fire damage, pest fumigation, etc. Even the most diligent rental property owner may experience unanticipated events (extreme weather, fire, etc.) that necessitate access to an empty rental unit for maintenance or repair. In addition, there may also be times when specific conduct (or lack thereof) by the tenant, the owner, or other residents may result in the need for the unit to be vacated for repairs. Determining the appropriate level of compensation for the displaced resident will depend on which party, if any, is at fault.

The following situations illustrate when an owner may be found negligent and/or maybe held responsible for providing relocation assistance:

  • ●  Termite fumigation is necessary because the building owner placed mulched garden beds right up next to the building without an appropriate termite barrier;
  • ●  Water damage results from lack of attention to rain gutters, allowing them to become filled with leaves and debris which caused water to back up into the attic;

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● Failure to repair known damage to roof, which resulted in water damage.

The following examples show damages caused by a tenant or other third party where the owner may not be responsible for relocation assistance:

  • ●  Fire damage caused by tenant or third party unrelated to owner.
  • ●  Damage from earthquake, not exacerbated by defective conditions on the premises.

    These are just a few examples where specific conduct caused or exacerbated the damage. The list is clearly not exhaustive and owners are urged to be prudent when making this determination. In many circumstances, fault may not be clear or is subject to dispute. The owner should work out a reasonable agreement with the tenant regarding relocation. Memorializing the agreement in writing is often more productive than arguing fault.

    Rebating Rent & Paying Relocation Costs

    Daily rent is calculated as 1/30 of the monthly rent value. In a no-fault scenario, the owner would simply rebate the daily rent for the number of days (or partial days) the tenant must be out of the unit.

    If the owner is at fault for the condition necessitating relocation, the owner is responsible for the cost of comparable alternate housing and incidentals (describe), less the daily rent.

    As a practical matter, the owner may pay the tenant the daily rent to help cover their expenses during relocation.

    Total Destruction of the Unit

    Thus far, this Insight has considered the obligation due when a unit must be temporarily vacated. There are instances, however, where damage is so extensive that the unit becomes uninhabitable.

    Under California law, total destruction of the premises cancels the rental or lease agreement. When the agreement is cancelled, the tenant’s obligation to pay rent ceases, and the landlord’s obligation to provide housing is extinguished.

    Notice Prior to Entry

    Before entering a dwelling unit to perform maintenance or repairs, the owner must give the tenant reasonable notice in writing of his or her intent to enter. The notice must include the date, approximate time, and purpose of the entry. If additional entry is required, either before or after the tenant’s relocation, a second notice to enter may be required.

    A Word about Rent Control

    The general advice provided in this Insight does not apply to rent control areas. In those communities, the property owner’s obligation for temporary relocation will be set forth in the local rent stabilization ordinance. Property owners in these areas should check with their local rent control board to determine what steps they must take when a unit must be temporarily vacated to facilitate maintenance or repairs.

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Related Items and Information

  • California Civil Code Section 1933(4).
  • Notice to Enter Dwelling Unit – CAA Form 19.0
  • Tenant Service Request – CAA Form 24.0 and 24.1
  • Pest Control Notice Addendum – CAA Form 2.6
  • Maintenance Door Tag – CAA Form 44.0
  • CAA’s Industry Insights – Entering the Rental Unit
  • CAA’s Industry Insights – Notifying Tenants When Spraying Pesticides on the Property
  • CAA’s Industry Insight – San Francisco Temporary Tenant Relocation Benefits

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Habitability Maintenance and Repair Responsibilities of the Owner and Tenant

 

California law requires residential rental property owners to deliver and maintain their rental units in a habitable condition, this legal principle is called the warranty of habitability. Though originally created by the California Supreme Court in 1974, the California Legislature has codified many of the principles of the warranty of habitability in the Civil Code. A residential rental property owner who fails to provide habitable premises risks code enforcement action by their local government, being sued by their tenants, having the cost of repair deducted from the rent, and losing unlawful detainer actions based on non- payment of rent.

Nature of the Warranty of Habitability

According to the California Supreme Court in the landmark case of Green v. Superior Court (1974) 10 Cal.3d 616, the warranty of habitability was created to recognize “the realities of the modern urban landlord-tenant relationship,” by making the property owner ultimately responsible for ensuring that residential rental units are maintained in accordance with basic standards throughout the tenancy. The warranty of habitability encompasses not only the condition of the rental unit itself, but also the common areas, including stairs, hallways, and parking lots. Thus, a residential rental property owner must ensure that all areas of the property are properly maintained.

Residential property owners cannot avoid the warranty of habitability by contracting around it in their leases or any other document. A tenant’s right to habitable premises cannot be waived, so even if the tenant is willing to accept a rental unit which does not meet habitability standards (for example, in exchange for lower monthly rent), the law still requires the owner to maintain the unit in a habitable condition. Similarly, an owner cannot put the unit into a habitable condition at the beginning of the tenancy and then make the tenant responsible for any future repairs. A court will not enforce a contract or lease provision in which the owner has attempted to relieve him or herself of the responsibility for ensuring the unit is habitable. However, the owner and tenant may agree at the beginning of the tenancy (before the tenant has taken possession of the unit) that the tenant will be responsible for certain improvements, repairs, and/or maintenance responsibilities, in exchange for lower rent. CAA recommends that you consult with your attorney prior to entering into such an agreement.

The warranty of habitability is an obligation which comes from the law rather than from contract (i.e. the lease). As such, the warranty of habitability is the “floor” rather than the “ceiling” of the owner’s obligation to maintain the rental unit. There may be additional agreements that are made in the lease or at other times throughout the tenancy between the tenant and the owner which require the owner to do more
than is required by the warranty of habitability. For example, an agreement by the owner to maintain appliances and amenities that came with the unit may be implied if the appliance or amenity was advertised, even if it is not specifically mentioned in the lease. It is possible to limit one’s responsibility for maintaining appliances that are not required for habitability. For example, some owners may provide a new washer and dryer, but expressly disclaim any responsibility for maintenance, repair or replacement during the tenancy. This type of provision should be reviewed with your attorney prior to inclusion in the lease.

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Scope of the Warranty of Habitability

The Green case held that, in general, substantial compliance with building and housing code provisions which materially affect health and safety will be sufficient for a rental unit to be considered habitable. Civil Code section 1941.1, Civil Code section 1941.3, Health and Safety Code section 17920.3, and Health and Safety Code section 17920.10 set forth numerous affirmative “tenantability” standards which are required for a unit to be considered habitable. The full text of these code sections is included at the end of this paper, the most commonly cited provisions include:

  •   Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors, and rooms which are not damp.
  •   Operable dead bolt locks on each main swinging entry door, and locks on all doors and windows with access to the outside or common areas.
  •   Plumbing facilities, including a kitchen sink, toilet, and bath or shower in good working order, and including hot and cold running water, connected to a sewage disposal system.
  •   No visible mold growth, not including mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use (i.e. mildew).
  •   Gas facilities in good working order.
  •   Heating facilities in good working order.
  •   An electrical system, including lighting, wiring, and equipment, in good working order.
  •   Clean and sanitary buildings, grounds, and appurtenances, free from debris, filth, rubbish,

    garbage, visible mold growth, rodents, and vermin.

  •   Adequate trash receptacles in good repair.
  •   Floors, stairways, and railings in good repair.
  •   An environment free from deteriorated lead-based paint, lead-contaminated dust, lead

    contaminated soil, or disturbing lead-based paint without containment in amounts equal to or exceeding established regulatory limits which is likely to endanger the health of the public or the occupants.

    A failure to provide any of the above is considered a “substandard” condition.

    The warranty of habitability requires owners to maintain the unit in accordance with “bare living requirements,” it does not require the owner to ensure that the unit is kept in a “perfect, aesthetically pleasing condition.” Tenants sometimes confuse an owner’s obligation to pro-rate the cost of replacing an item, such as carpet or paint, based on the expected useful life of the item for purposes of making deductions from the tenant’s security deposit with a habitability requirement, and will demand that the owner repaint or replace carpeting in their unit simply because it is old or outdated. The warranty of habitability does not require an owner to replace an item merely because it is not aesthetically pleasing. However, if the item poses a health and safety hazard, then the warranty of habitability does require the owner to correct the health or safety condition. For example, old carpet is not necessarily a habitability issue, however, if the carpet is moldy, or ripped or stretched such that it is a trip hazard, then the owner does have an obligation under the warranty of habitability to replace the carpet. Owners should always be sure to consult the lease as well when a tenant makes a request for the owner to make an aesthetic improvement because even though it is not required by the warranty of habitability, the owner may have agreed in the lease to make aesthetic upgrades to the unit.

    One question that owners in California frequently face is whether they must provide air conditioning in a rental unit, and if so, whether and how quickly they must repair a broken air conditioner. While a functional heating system is required for habitability under statute, air conditioning is not listed as required and is typically considered an amenity. However, if the rental unit is in a geographic area that frequently and normally experiences high temperatures, a tenant may be able to make an argument that the rental unit is not habitable without air conditioning. Tenants who have elderly or disabled household

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members may also argue that not having air conditioning is a health and safety issue. An owner who is faced with such an issue should speak to their attorney.

Some local ordinances may require that an owner provide air conditioning in a rental unit. Whether or not specifically required, if the owner provides air conditioning and the air conditioner breaks, the owner is responsible for repairing the air conditioner, unless the owner and tenant agreed otherwise at the beginning of the tenancy. The owner should have the air conditioner repaired within a reasonable amount of time. The specific facts of a given tenancy, such as whether there is hot weather at the time the air conditioner breaks and the presence of elderly or ill residents, will affect how much time is considered “reasonable.”

Breach of the Warranty of Habitability
The existence of a substandard condition does not in and of itself result in a breach of the warranty of habitability, the breach must be substantial and the owner must have actual or constructive notice of the substandard condition. If the defect is not substantial, or if the owner was not actually aware of the defect and the defect would not have been disclosed by a reasonable inspection, then there is no breach of the warranty of habitability.

California law does not specifically address whether, as a general matter, a property owner is allowed an opportunity to correct substandard conditions before the warranty of habitability is breached. One case has held that where an owner is aware of a substandard condition, the breach exists from the time of the notice to the owner, regardless of whether there has been an opportunity to correct the condition. As a practical matter, however, tenants and courts are less likely to hold an owner liable for a breach where immediate action is taken to repair the substandard condition once the owner is on notice.

The law treats some types of defects differently than others. In the case of a substandard condition arising out of an owner’s obligation to install and maintain specified door and window locking/security devices under Civil Code section 1941.3, the tenant is responsible for notifying the property owner of an inoperable dead bolt lock or window security or locking device in the tenant’s unit, and the owner is allowed a reasonable time to correct the defect. This means that the owner must have actual notice of the issue with the locking device and fail to correct the issue within a reasonable period of time before the tenant can hold the owner liable. The Health and Safety Code also requires that in order for mold in a unit to be considered a habitability issue, there must be visible mold growth that is determined by a code enforcement officer and the owner must have been given notice. Therefore, a tenant is not entitled to withhold rent, or use other enforcement options discussed below, until a code enforcement officer has confirmed the presence of visible mold growth in the rental unit, and the owner has been given notice of this determination. Certain enforcement options also affect what type of notice and opportunity to correct the owner has. For example, before a tenant may use the “repair and deduct” remedy discussed below, the tenant must give the owner notice and a reasonable time to correct the habitability issue.

Once on notice of a habitability issue, the owner should repair the issue within a reasonable time. What amount of time is considered reasonable will depend on a case-by-case consideration of the facts. More serious issues that pose imminent health and safety issues will need to be handled more quickly than less serious issues that do not pose an imminent health and safety issue. For example, if a tenant has a non-functioning toilet and the issue arises on a weekend, there are various factors to consider in whether the owner must incur the additional cost of hiring an after-hours plumber to repair the toilet, or whether the owner can wait until the next business day to have a plumber go to the unit during normal business hours. If the toilet is backing up and causing sewage to spill, or if there are no other toilets in the rental unit for the tenant to use, the non-functioning toilet poses an imminent health and safety issue and the owner needs to take immediate action to have the toilet repaired. If the non-functioning toilet is not backing up and causing sewage to spill, and there is another functioning toilet in the rental unit that the tenant can use, the issue is still serious and must be repaired, but the owner will be more justified in waiting until the next business day to have the issue repaired. Similarly, a leaky window seal or broken

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heater will pose more of an imminent issue requiring immediate action to repair during wet and rainy months than during warm and dry months. While an owner may be justified in taking longer to repair a less-serious habitability issue, taking more than 30 days to repair a habitability issue will typically not be considered reasonable.

Tenant Responsibilities

While the primary responsibility for ensuring that the rental unit is maintained in a habitable condition rests with the owner, tenants are required by law to: (1) keep the rental unit in a clean and sanitary condition; (2) dispose of garbage and other waste in a clean and sanitary manner; (3) properly use and keep clean all electrical, gas and plumbing fixtures; (4) not allow any household member or guest to willfully or wantonly damage the premises; and (5) use the areas of the rental unit designated for living, sleeping, cooking or dining purposes only for the purpose for which they were designed or intended to be used. If the tenant’s failure to comply with these requirements substantially contributes to the substandard condition, or substantially interferes with the owner’s ability to make repairs, then the owner does not have a duty to correct the substandard condition.

Often it can be difficult to prove that a tenant’s conduct “substantially contributed” to a habitability issue, therefore, it is risky for an owner to refuse to repair a habitability issue. Further, even in situations in which a habitability issue is caused by one tenant, and thus the owner technically does not have a duty to repair, the issue can often cause a ripple effect of habitability issues in connected units, which the owner would have a duty to repair. For example, a tenant in one unit may allow spoiled food to accumulate in his or her unit, causing a pest infestation in the tenant’s unit. While the owner may not have a legal obligation to treat the infestation in that tenant’s unit, the infestation is likely to spread to other units, and the owner will have the obligation to treat the infestation in the “innocent” tenants’ units. CAA recommends that owners consult with their attorney before refusing to repair a habitability issue in a unit. An owner who refuses to repair a habitability issue risks being subject to code enforcement proceedings, and may also be held liable by the affected tenant(s), as discussed below.

In most situations, it is not only a better legal decision, but also a better business decision for the owner to promptly repair habitability issues, even if a tenant caused the issue. In addition to a habitability issue in one unit potentially spreading to other adjoining units, the failure to repair a habitability issue may also cause further habitability issues. This could result in greater damage to the owner’s building which will be costlier to repair. For example, if a tenant willfully breaks a window in the unit, the owner may be tempted to refuse to repair the broken window. However, a broken window can allow insects and vermin to infest the unit, and the exposure to the elements may cause water damage and mold inside the unit. The cost of simply repairing the broken window will be much lower than having to treat infestation and remediate mold and water damage to the unit.

Consequences for Breaching the Warranty of Habitability

A property owner who breaches the warranty of habitability may face one or more of the consequences described below.

Enforcement Proceedings by Local Government Agencies
Local government agencies (typically a code enforcement agency or health department) may inspect a rental unit and issue a citation to the owner if there are substandard conditions present. The owner must correct the condition(s) within a reasonable time, which is typically 30 days but may be shorter when necessary to prevent or remedy an immediate threat to the health and safety of the tenant and/or other affected tenants or neighbors. If the owner fails to comply with the citation, the local agency may institute actions and proceedings to enforce the abatement order, including performing the necessary repair work, ordering a demolition of the substandard building, initiating criminal proceedings, imposing fines and penalties, seeking tax penalties, and seeking the appointment of a receiver to assume control of the substandard building. An owner is also prohibited from demanding rent, collecting rent, serving a notice of a rent increase, or serving a three-day notice to pay rent or quit where the owner has breached the

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warranty of habitability, been issued a notice to correct by code enforcement, and has failed to correct the defects within 35 days of the citation (a longer period may be allowed by code enforcement for good cause). Owners are required to pay relocation assistance to tenants displaced because the enforcement agency has issued an order to vacate a rental unit as the result of a violation which is attributable to the owner. Owners are not required to pay relocation assistance where the violation was caused by a tenant or a natural disaster, and was not exacerbated by defective conditions on the premises.

Lawsuit for Damages and/or Injunctive Relief
A tenant of an uninhabitable unit may sue the property owner for money damages under multiple theories including breach of the warranty of habitability, breach of contract, nuisance, and intentional infliction of emotional distress. In addition to actual damages, including compensation for diminished rental value, health issues attributable to the substandard conditions, and emotional distress damages, a court may award statutory damages of between $100 and $5,000, and may order the property owner to pay the tenant’s attorney’s fees and costs. In extreme cases, a court may also impose punitive damages. The tenant may also seek injunctive relief (to order the owner to make repairs) from the court.

Repair and Deduct
Residential tenants are entitled to repair untenantable conditions at their own expense and deduct those costs from their rent. The tenant also has the option of vacating the premises rather than repairing the defects, in which case the owner cannot require further rent payments from the tenant. The repair and deduct remedy is subject to certain limitations. Before a tenant may use the repair and deduct remedy, the tenant must give the owner (or the owner’s agent) written or oral notice of the defects which make the unit uninhabitable. The owner then has a reasonable amount of time in which to correct the defects. If the owner fails to correct the condition within a reasonable time, then the tenant may repair the defects and deduct the cost from his or her next rent payment. If the owner has not corrected the defects within 30 days of the tenant’s notice, it is generally considered that the owner has had a reasonable opportunity to correct the defects. If the tenant chooses to repair the defects, the repair cost cannot be more than one month’s rent. A tenant may not use the repair and deduct remedy more than twice in any twelve- month period.

Defense in Unlawful Detainer Action for Nonpayment of Rent
The law also allows residential tenants to refuse to pay their rent where there are habitability issues in the rental unit. The tenant may then claim breach of the warranty of habitability as a defense, when the owner brings an unlawful detainer action based on nonpayment of rent. In this situation, the judge who oversees the unlawful detainer case will allow the tenant to present evidence of the alleged habitability issue(s), and the owner will be allowed to present counter evidence (including evidence that the issue was caused by the tenant). The judge will then decide if there was a substantial breach of the warranty of habitability by the owner. If the judge finds that the tenant’s evidence does not show that there was a breach of the warranty of habitability, then the judge will rule against the tenant and the owner can proceed with the eviction of the tenant. However, if the judge finds that the owner substantially breached the warranty of habitability, then the judge must decide what the rental value of the rental unit is with the habitability issues, and will allow the tenant to avoid eviction if the tenant can pay the reduced rent that the judge decides is reasonable.

For example, if an owner filed an unlawful detainer action against a tenant based on the tenant’s failure to pay one month’s rent of $1,000, the tenant could claim that he or she should not be evicted for not paying the rent because the owner breached the warranty of habitability because the unit did not have hot running water. Assuming the tenant could prove this claim with evidence, then the judge would have to decide how much the value of the unit was diminished due to the lack of hot running water. If the judge decided that the lack of hot running water in the unit diminished the value of the unit by 20%, then the judge would enter a judgment in favor of the tenant which would allow the tenant to continue living in the unit so long as the tenant paid the reduced rent of $800 within five days. In a case like this, the judge could also require the owner to pay the attorney’s fees and costs that were incurred by the tenant in

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defending the unlawful detainer case. So in addition to not being able to get possession of the unit back, and losing some or all of the rent, the owner could also end up having to pay money out of pocket for the tenant’s legal costs.

Tenant Protection for Making Habitability Complaints

An owner is not allowed to retaliate against a tenant who has complained, either to the owner or a code enforcement agency, about habitability issues. An owner can normally serve a month to month tenant a 30 or 60 day “no cause” termination notice for any reason or no reason at all, but the law prohibits an owner from evicting a tenant because the tenant has complained about habitability issues. This protection from retaliation may be used as a defense in an unlawful detainer case. Tenants may also sue for damages if they have been retaliated against. It is considered a retaliatory eviction where, in the 180 days prior to the 30 or 60 day notice being served, the tenant complained to the owner or a government agency about habitability, filed a lawsuit against the owner alleging breach of the warranty of habitability, obtained a judgment or arbitration award against the owner for breach of the warranty of habitability, or where a code enforcement agency inspected the unit or issued a citation as the result of a complaint from the tenant. The owner is also prohibited from retaliating against a tenant by raising the rent or decreasing services within 180 days of the actions listed above. The owner may raise the rent, decrease services, or serve an eviction notice on a tenant (subject to restrictions in local rent control ordinances) within this 180-day period so long as the owner has a legal good faith reason for doing so, and the owner states the legal good faith reason in the notice to the tenant. The owner will have burden of proving in court that the legal good faith reason stated in the notice is true.

Being Prepared

Providing habitable premises is one of the primary duties of an owner of residential rental housing. In order to comply with this duty and avoid liability, owners should work with their attorneys to develop a policy for identifying and addressing habitability issues promptly. A successful policy will provide for a simple and standardized way for tenants to submit written maintenance requests, a reasonable time window in which the owner will respond to maintenance request, a procedure for dealing with emergency situations, and a system of record keeping for all maintenance work performed in a unit. Ideally, owners should have tenant sign off on completed work orders, indicating that repairs were performed to their satisfaction.

References

  •   California Civil Code sections 1941, 1941.1, 1941.2, 1941.3, 1941.7, 1942, 1942.1, 1942.4, 1942.5
  •   California Health and Safety Code sections 17920.3, 17920.10, 17975
  •   Green v. Superior Court (1974) 10 Cal.3d 616
  •   Notice to Enter Dwelling Unit – CAA Form 19.0 and 19.1
  •   Tenant Service Request – CAA Form 24.0 and 24.1
  •   Maintenance Door Tag – CAA Form 44.0
  •   CAA’s Industry Insights – Entering the Rental Unit
  •   CAA’s Industry Insights – Tenant Relocation during Maintenance & Repairs.

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Civil Code Section 1941.1

  1. (a)  A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code:
    1. (1)  Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
    2. (2)  Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.
    3. (3)  A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.
    4. (4)  Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.
    5. (5)  Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.
    6. (6)  Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.
    7. (7)  An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control.
    8. (8)  Floors, stairways, and railings maintained in good repair.
    9. (9)  A locking mail receptacle for each residential unit in a residential hotel, as required by

      Section 17958.3 of the Health and Safety Code. This subdivision shall become operative on July 1, 2008.

  2. (b)  Nothing in this section shall be interpreted to prohibit a tenant or owner of rental properties from qualifying for a utility energy savings assistance program, or any other program assistance, for heating or hot water system repairs or replacement, or a combination of heating and hot water system repairs or replacements, that would achieve energy savings.

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Civil Code Section 1941.3

  1. (a)  On and after July 1, 1998, the landlord, or his or her agent, of a building intended for human habitation shall do all of the following:
    1. (1)  Install and maintain an operable dead bolt lock on each main swinging entry door of a dwelling unit. The dead bolt lock shall be installed in conformance with the manufacturer’s specifications and shall comply with applicable state and local codes including, but not limited to, those provisions relating to fire and life safety and accessibility for the disabled. When in the locked position, the bolt shall extend a minimum of13/16 of an inch in length beyond the strike edge of the door and protrude into the doorjamb.

      This section shall not apply to horizontal sliding doors. Existing dead bolts of at least one- half inch in length shall satisfy the requirements of this section. Existing locks with a thumb-turn deadlock that have a strike plate attached to the doorjamb and a latch bolt that is held in a vertical position by a guard bolt, a plunger, or an auxiliary mechanism shall also satisfy the requirements of this section. These locks, however, shall be replaced with a dead bolt at least 13/16 of an inch in length the first time after July 1, 1998, that the lock requires repair or replacement.

      Existing doors which cannot be equipped with dead bolt locks shall satisfy the requirements of this section if the door is equipped with a metal strap affixed horizontally across the midsection of the door with a dead bolt which extends 13/16 of an inch in length beyond the strike edge of the door and protrudes into the doorjamb. Locks and security devices other than those described herein which are inspected and approved by an appropriate state or local government agency as providing adequate security shall satisfy the requirements of this section.

    2. (2)  Install and maintain operable window security or locking devices for windows that are designed to be opened. Louvered windows, casement windows, and all windows more than 12 feet vertically or six feet horizontally from the ground, a roof, or any other platform are excluded from this subdivision.
    3. (3)  Install locking mechanisms that comply with applicable fire and safety codes on the exterior doors that provide ingress or egress to common areas with access to dwelling units in multifamily developments. This paragraph does not require the installation of a door or gate where none exists on January 1, 1998.
  2. (b)  The tenant shall be responsible for notifying the owner or his or her authorized agent when the tenant becomes aware of an inoperable dead bolt lock or window security or locking device in the dwelling unit. The landlord, or his or her authorized agent, shall not be liable for a violation of subdivision (a) unless he or she fails to correct the violation within a reasonable time after he or she either has actual notice of a deficiency or receives notice of a deficiency.
  3. (c)  On and after July 1, 1998, the rights and remedies of tenant for a violation of this section by the landlord shall include those available pursuant to Sections 1942, 1942.4, and 1942.5, an action for breach of contract, and an action for injunctive relief pursuant to Section 526 of the Code of Civil Procedure. Additionally, in an unlawful detainer action, after a default in the payment of rent, a tenant may raise the violation of this section as an affirmative defense and shall have a right to the remedies provided by Section 1174.2 of the Code of Civil Procedure.
  4. (d)  A violation of this section shall not broaden, limit, or otherwise affect the duty of care owed by a landlord pursuant to existing law, including any duty that may exist pursuant to Section 1714. The delayed applicability of the requirements of subdivision (a) shall not affect a landlord’s duty to maintain the premises in safe condition.

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  1. (e)  Nothing in this section shall be construed to affect any authority of any public entity that may otherwise exist to impose any additional security requirements upon a landlord.
  2. (f)  This section shall not apply to any building which has been designated as historically significant by an appropriate local, state, or federal governmental jurisdiction.
  3. (g)  Subdivisions (a) and (b) shall not apply to any building intended for human habitation which is managed, directly or indirectly, and controlled by the Department of Transportation. This exemption shall not be construed to affect the duty of the Department of Transportation to maintain the premises of these buildings in a safe condition or abrogate any express or implied statement or promise of the Department of Transportation to provide secure premises. Additionally, this exemption shall not apply to residential dwellings acquired prior to July 1, 1997, by the Department of Transportation to complete construction of state highway routes 710 and 238 and related interchanges.

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Health and Safety Code Section 17920.3

Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building:

  1. (a)  Inadequate sanitation shall include, but not be limited to, the following:
    1. (1)  Lack of, or improper water closet, lavatory, or bathtub or shower in a dwelling unit.
    2. (2)  Lack of, or improper water closets, lavatories, and bathtubs or showers per number of

      guests in a hotel.

    3. (3)  Lack of, or improper kitchen sink.
    4. (4)  Lack of hot and cold running water to plumbing fixtures in a hotel.
    5. (5)  Lack of hot and cold running water to plumbing fixtures in a dwelling unit.
    6. (6)  Lack of adequate heating.
    7. (7)  Lack of, or improper operation of required ventilating equipment.
    8. (8)  Lack of minimum amounts of natural light and ventilation required by this code.
    9. (9)  Room and space dimensions less than required by this code.
    10. (10)  Lack of required electrical lighting.
    11. (11)  Dampness of habitable rooms.
    12. (12)  Infestation of insects, vermin, or rodents as determined by a health officer or, if an

      agreement does not exist with an agency that has a health officer, the infestation can be determined by a code enforcement officer, as defined in Section 829.5 of the Penal Code, upon successful completion of a course of study in the appropriate subject matter as determined by the local jurisdiction.

    13. (13)  Visible mold growth, as determined by a health officer or a code enforcement officer, as defined in Section 829.5 of the Penal Code, excluding the presence of mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.
    14. (14)  General dilapidation or improper maintenance.
    15. (15)  Lack of connection to required sewage disposal system.
    16. (16)  Lack of adequate garbage and rubbish storage and removal facilities, as determined by a

      health officer or, if an agreement does not exist with an agency that has a health officer, the lack of adequate garbage and rubbish removal facilities can be determined by a code enforcement officer as defined in Section 829.5 of the Penal Code.

  2. (b)  Structural hazards shall include, but not be limited to, the following:
    1. (1)  Deteriorated or inadequate foundations.
    2. (2)  Defective or deteriorated flooring or floor supports.
    3. (3)  Flooring or floor supports of insufficient size to carry imposed loads with safety.
    4. (4)  Members of walls, partitions, or other vertical supports that split, lean, list, or buckle due to

      defective material or deterioration.

    5. (5)  Members of walls, partitions, or other vertical supports that are of insufficient size to carry

      imposed loads with safety.

    6. (6)  Members of ceilings, roofs, ceiling and roof supports, or other horizontal members which

      sag, split, or buckle due to defective material or deterioration.

    7. (7)  Members of ceilings, roofs, ceiling and roof supports, or other horizontal members that are

      of insufficient size to carry imposed loads with safety.

    8. (8)  Fireplaces or chimneys which list, bulge, or settle due to defective material or

      deterioration.

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(9) Fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety.

(c) Any nuisance.

  1. (d)  All wiring, except that which conformed with all applicable laws in effect at the time of installation if it is currently in good and safe condition and working properly.
  2. (e)  All plumbing, except plumbing that conformed with all applicable laws in effect at the time of installation and has been maintained in good condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly, and that is free of cross connections and siphonage between fixtures.
  3. (f)  All mechanical equipment, including vents, except equipment that conformed with all applicable laws in effect at the time of installation and that has been maintained in good and safe condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly.
  4. (g)  Faulty weather protection, which shall include, but not be limited to, the following:
    1. (1)  Deteriorated, crumbling, or loose plaster.
    2. (2)  Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations, or floors,

      including broken windows or doors.

    3. (3)  Defective or lack of weather protection for exterior wall coverings, including lack of paint,

      or weathering due to lack of paint or other approved protective covering.

    4. (4)  Broken, rotted, split, or buckled exterior wall coverings or roof coverings.
  5. (h)  Any building or portion thereof, device, apparatus, equipment, combustible waste, or vegetation that, in the opinion of the chief of the fire department or his deputy, is in such a condition as to cause a fire or explosion or provide a ready fuel to augment the spread and intensity of fire or explosion arising from any cause.
  6. (i)  All materials of construction, except those that are specifically allowed or approved by this code, and that have been adequately maintained in good and safe condition.
  7. (j)  Those premises on which an accumulation of weeds, vegetation, junk, dead organic matter, debris, garbage, offal, rodent harborages, stagnant water, combustible materials, and similar materials or conditions constitute fire, health, or safety hazards.
  8. (k)  Any building or portion thereof that is determined to be an unsafe building due to inadequate maintenance, in accordance with the latest edition of the Uniform Building Code.
  9. (l)  All buildings or portions thereof not provided with adequate exit facilities as required by this code, except those buildings or portions thereof whose exit facilities conformed with all applicable laws at the time of their construction and that have been adequately maintained and increased in relation to any increase in occupant load, alteration or addition, or any change in occupancy.

    When an unsafe condition exists through lack of, or improper location of, exits, additional exits may be required to be installed.

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  1. (m)  All buildings or portions thereof that are not provided with the fire-resistive construction or fire- extinguishing systems or equipment required by this code, except those buildings or portions thereof that conformed with all applicable laws at the time of their construction and whose fire- resistive integrity and fire-extinguishing systems or equipment have been adequately maintained and improved in relation to any increase in occupant load, alteration or addition, or any change in occupancy.
  2. (n)  All buildings or portions thereof occupied for living, sleeping, cooking, or dining purposes that were not designed or intended to be used for those occupancies.
  3. (o)  Inadequate structural resistance to horizontal forces.

“Substandard building” includes a building not in compliance with Section 13143.2.

However, a condition that would require displacement of sound walls or ceilings to meet height, length, or width requirements for ceilings, rooms, and dwelling units shall not by itself be considered sufficient existence of dangerous conditions making a building a substandard building, unless the building was constructed, altered, or converted in violation of those requirements in effect at the time of construction, alteration, or conversion.

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Health and Safety Code Section 17920.10

  1. (a)  Any building or portion thereof including any dwelling unit, guestroom, or suite of rooms, or portion thereof, or the premises on which it is located, is deemed to be in violation of this part as to any portion that contains lead hazards. For purposes of this part, “lead hazards” means deteriorated lead-based paint, lead-contaminated dust, lead-contaminated soil, or disturbing lead- based paint without containment, if one or more of these hazards are present in one or more locations in amounts that are equal to or exceed the amounts of lead established for these terms in Chapter 8 (commencing with Section 35001) of Division 1 of Title 17 of the California Code of Regulations or by this section and that are likely to endanger the health of the public or the occupants thereof as a result of their proximity to the public or the occupants thereof.
  2. (b)  In the absence of new regulations adopted by the State Department of Health Services in accordance with the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) further interpreting or clarifying the terms “deteriorated lead-based paint,” “lead-based paint,” “lead-contaminated dust,” “containment,” or “lead-contaminated soil,” regulations in Chapter 8 (commencing with Section 35001) of Division 1 of Title 17 of the California Code of Regulations adopted by the State Department of Health Services pursuant to Sections 105250 and 124150 shall interpret or clarify these terms. If the State Department of Health Services adopts new regulations defining these terms, the new regulations shall supersede the prior regulations for the purposes of this part.
  3. (c)  In the absence of new regulations adopted by the State Department of Health Services in accordance with the rulemaking provisions of the Administrative Procedure Act defining the term “disturbing lead-based paint without containment” or modifying the term “deteriorated lead-based paint,” for purposes of this part “disturbing lead-based paint without containment” and “deteriorated lead-based paint” shall be considered lead hazards as described in subdivision (a) only if the aggregate affected area is equal to or in excess of one of the following:
    1. (1)  Two square feet in any one interior room or space.
    2. (2)  Twenty square feet on exterior surfaces.
    3. (3)  Ten percent of the surface area on the interior or exterior type of component with a small

      surface area. Examples include window sills, baseboards, and trim.

  4. (d)  Notwithstanding subdivision (c), “disturbing lead-based paint without containment” and “deteriorated lead-based paint” shall be considered lead hazards, for purposes of this part, if it is determined that an area smaller than those specified in subdivision (c) is associated with a person with a blood lead level equal to or greater than 10 micrograms per deciliter.
  5. (e)  If the State Department of Health Services adopts regulations defining or redefining the terms “deteriorated lead-based paint,” “lead-contaminated dust,” “lead-contaminated soil,” “disturbing lead-based paint without containment,” “containment,” or “lead-based paint,” the effective date of the new regulations shall be deferred for a minimum of three months after their approval by the Office of Administrative Law and the regulations shall take effect on the next July 1 or January 1 following that three-month period. Until the new definitions apply, the prior definition shall apply.

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When is a Pet Not a Pet? Accommodating Persons with Disabilities

I
INTRODUCTION
Many property owners protect their investment by not allowing any (or certain types) of pets on the property due to possible damage by the pet and the fact that existing law may not allow for an adequate security deposit to cover the damage. However, recent laws on fair housing and accommodating persons with disabilities now restrict the ability of owners to have an “absolutely no pets” policy.
A guide dog leading a blind person is the image that usually comes up when someone thinks of a service animal helping a disabled person. However, guide dogs are not the only type of animal that can be considered a “necessary and reasonable accommodation,” and federal and state anti-discrimination laws broadly define disabilities to include both physical and mental impairments.
This paper will provide needed background and guidance for owners who have questions concerning this issue.
II
FEDERAL LAW
A. The Federal Fair Housing Act (FHA)
The Federal Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, requires property owners to make reasonable accommodations for a person with a disability, to enable them to enjoy the residence on an equal basis with tenants who are not disabled. 42 U.S.C. §3604(f)(3)(B).
The fair housing regulations state that “It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common areas.” 24 CFR §100.204(a).
The only specific mention of pets or service animals in either the law or regulation is the following illustration given in the regulations which address an owner’s failure to make a necessary and reasonable accommodation:
A blind applicant for rental housing wants to live in a dwelling unit with a seeing-eye dog. The building has a no pets policy. It is a violation…for the owner or manager… to refuse to permit the applicant to live in the apartment with a seeing eye dog because without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling. 24 CFR §100.204(b).

B. Americans with Disabilities Act (ADA)
The ADA does not apply to private residential rental properties, except to the extent that the property is also a place of “public accommodation.” For example, the ADA would apply to an apartment complex rental office and to a unit used as a retail store, for example. The ADA specifically requires that service animals used by disabled individuals be allowed in places of public accommodation. ADA Title III, §36.302. “Service animals” include guide dogs, signal dogs, and or other animals individually trained to do work or perform tasks for the benefit of an individual with a disability. ADA Title III §36.104.
Although they are not directly applicable, agency interpretations of the term “service animal” under ADA can shine some light on what animals (at a minimum) could be considered reasonable accommodations under the provisions of the Fair Housing law. It is important to remember that the FHA is broader than the ADA because it allows any animal if it is a necessary and reasonable accommodation, rather than just “service animals” with a particular type of training.
Under the ADA, it is clear that an animal other than a dog can be a service animal, as long as it has the training to be a “service animal.” In an opinion issued by the US Attorney General-Civil Rights Division, a disabled individual entering a hotel accompanied by a monkey as a service animal is presented as an example of a situation where the ADA applies – opinion letter of USAG, Civil Rights Division to Corey Hudson 10/26/92 DJ#192-06-00029.
III
CALIFORNIA LAW
California’s fair housing law (the Unruh Civil Rights Act) mirrors the language of the federal Fair Housing Act. “Any person renting, leasing, or otherwise providing real property for compensation shall not refuse to make reasonable accommodations in rules, policies, practices, or services when those accommodations may be necessary to afford an individual with a disability equal opportunity to use and enjoy the premises.” Civil Code §54.1(b)(3)(A).
Like the federal act, California does not define “reasonable accommodation.” The California law does not address service animals, with the exception of service dogs. As a result, an owner with a “no pets” policy may have to allow a cat or other animal if it is a reasonable accommodation, even if it is not trained as a service animal.
The California Civil Code defines disability in essentially the same way as federal law: “[A] physical or mental impairment that substantially limits one or more major life activities of the individual.” Civil Code § 54(b). California law also forbids property owners from inquiring about the disability of any person seeking to rent any housing accommodation. Government Code §12955(b).
IV
RELATIONSHIP BETWEEN STATE AND FEDERAL LAW
It is clear from court decisions and agency interpretations of the federal fair housing law and the ADA, that federal law controls when it is more protective of the disabled person. In the Bronk case, the court ruled that it was wrong to use standards borrowed from state and local laws to evaluate the concept of “reasonable accommodation” under the federal fair housing law, because the state and local laws were narrower (they required formal training). The U.S. Attorney General has also stated that the ADA does not preempt State law, if the State law provides protection greater than that provided by the ADA. The ADA does, however, prevail over conflicting state laws that provide lesser protection – See opinion letter of USAG, Civil Rights Division to Corey Hudson 10/26/92 DJ#192-06-00029.
As a result, an owner who complies with California law could still be in violation of federal law. As discussed above, the question is whether the animal helps the particular tenant with his/her disability.

V
PUBLICLY OWNED HOUSING
California Law requires that public agencies that own or operate rental housing accommodations cannot prohibit a “person requiring supportive services” as defined in Health & Safety Code §50685.5 or an elderly person (over 62) from keeping not more than two pets – Health and Safety Code 19901. This law does not require the animal to be a “service animal” at all.
VI
BASIC QUESTIONS AND ANSWERS
1. What is a disability?
“[A] physical or mental impairment which substantially limits one or more major life activities… “such as caring for one’s self(sic), performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 24 CFR §100.201. A landlord cannot ask whether the person is disabled, what kind of disability the person has, or how severe the disability is. 24 CFR §100.202. “If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent on the landlord to request documentation or open a dialogue” with the tenant. Jankowski Lee and Assoc. v. Cisneros (7th Cir1996), 91 F3d 891. Since the owner cannot ask about the disability, the owner should ask for documents showing that the dog or other animal is a reasonable accommodation and how it is necessary for use and enjoyment of the building.
2. What kind of animal is a necessary and reasonable accommodation?
Although it is clear that the FHA does require that service animals be allowed in a residential dwelling when reasonable and necessary to afford a disabled individual fair use and enjoyment of the property, it is not clear what type of animal is “necessary and reasonable.” A federal appeals court has ruled that the reasonableness of a requested accommodation is a question of fact, determined by close examination of the circumstances. U.S. v. California Mobile Home Park Management Co., (9th Cir. 1994) 29 F3d 1413. To be reasonable, the accommodation “must facilitate a disabled individual’s ability to function and it must survive a cost benefit analysis that takes both parties’ needs into account.” Bronk v. Ineichen (7th Cir. 1995) 54 F3d 425.
• The animal must facilitate the disabled individual’s ability to function. To prove that an accommodation is necessary, a plaintiff must, at minimum, show “that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.” Bronk v. Ineichen, (7th Cir. 1995) 54 F3d 425. In Bronk, the property owner argued that the tenant’s dog was not a service animal because it had no formal training. The court ruled that the jury should evaluate the dog’s ability to help the plaintiff and assign its own weight to the lack of formal schooling. In some situations, no training may be necessary for the animal to ameliorate the effects of a tenant’s disability. A HUD administrative law judge has ruled that a dog with no particular training was a necessary and reasonable accommodation for a tenant with severe recurring depression. HUD v. Riverbay Corp., HUD ALJ 02-93-0320-1.
• Restrictions on type of animal. Because the act does not define “reasonable accommodation,” there is no clear guidance on what types of animals must be allowed as accommodations for disabled tenants. Dogs are the most common, but not the only animals requested by tenants. In some circumstances, other animals such as cats or monkeys could arguably be necessary and reasonable accommodations as long as they ameliorate the effects of the tenant’s disability.
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• Licensing or training requirements. Property owners cannot require that a service dog have certificate from a state-licensed training school. Bronk v. Ineichen, (7th Cir. 1995) 54 F3d 425. By analogy, an owner could not demand that an assistance dog have an official tag. Again, the issue is whether the animal facilitates the individual’s ability to function. This may or may not require special training or licensing.
3. What is the difference between companion and service animals?
Generally, “service” animal refers to an animal that has specific training to assist a disabled person, such as a dog who will alert a resident to sounds such as knocks at the door and the telephone ringing. A companion animal is one that helps the disabled person but does not have special training. For the severely depressed condominium owners in the Auburn Woods case, simply taking care of a dog alleviated their symptoms and enabled them to function more productively. In 2004, the California Court of Appeal ruled that Auburn Woods was required to allow the disabled homeowners to keep their small dog as a reasonable accommodation. (Department of Fair Employment & Housing v. Auburn Woods I Homeowners Association)
4. If the tenant does not have an obvious disability, or the need for the accommodation is unclear, what kind of verification can I get?
You may request:
• Verification that the tenant/applicant is disabled as defined under California law (has a physical, mental, or medical condition that limits one or more life activities). You may not inquire about the nature of the disability.
• A description of the needed accommodation and information that shows the relationship between the person’s disability and the need for the requested accommodation.
Who can provide the verification?
According to the U.S. Department of Housing and Urban Development, depending on the individual’s circumstances, information can be provided by the individual (i.e., receipt of Social Security disability insurance benefits) or by a third party who is in a position to know about the individual’s disability (a medical professional, peer support group, non-medical service agency, or other reliable third party).
5. Does this only apply to dogs or also other animals? I read that the Americans with Disabilities Act (ADA) only requires me to allow dogs, not other types of animals.
The Americans with Disabilities Act regulations were recently revised to define service animals as dogs, and in some cases miniature horses. However, this definition applies only to “public accommodations,” i.e., places that are open to the public. The fair housing laws that apply to rental housing do not restrict the type of animals that can be a “reasonable accommodation.”
6. What about “dangerous breeds?”
Strict prohibitions on specific breeds, sizes, or types of animals are generally not permissible. For example, a resident may request to have a pit bull as a reasonable accommodation. The reasonability of that accommodation will depend on the particular dog, not the breed characteristics. The owner is not required to make an accommodation if the dog poses a “direct threat.” This does not mean that an owner can refuse all pit bulls, but must instead evaluate the particular pit bull that belongs to the resident or applicant. If the dog has a history of aggressive behavior (regardless of breed), that may be a reason to negotiate a different accommodation with the resident. When a requested accommodation is unreasonable, the owner has a duty to engage in the “interactive process” with the resident/applicant to find an alternate accommodation. (See also CAA Industry Insight – Liability for Injuries Caused by Dogs)
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It is also possible for an assistive animal to be “exotic,” such as a monkey that helps feed a disabled person. Dangerous animals such as rattlesnakes or tigers would not be reasonable, nor would animals that are illegal to own in California, such as ferrets.
7. What if I am required to have breed restrictions by my insurance company?
One of the exceptions to the duty to make reasonable accommodations is if the accommodation places an undue financial or administrative burden on the owner. CAA has heard from many of its members that their insurance companies are requiring breed restrictions, and, therefore, they cannot grant the accommodation requests for pit bulls and other such breeds. Several years ago, HUD issued a policy statement on dangerous breeds and insurance. This document provides information to HUD’s investigators on how to view a landlord’s defense of undue burden due to the insurance breed restriction issue. Essentially, HUD does consider that a valid defense, as described in the memo at this link: http://1.usa.gov/1jW4XqF.
Some attorneys have had some success with getting insurance companies to make an exception to the breed restriction when the animal is a service or companion animal for a disabled person. The argument is that insurance companies also have fair housing obligations. The California Department of Fair Employment and Housing is currently working on fair housing regulations that may address this issue.
8. What if the tenant wants more than one companion animal?
If more than one animal is necessary, then it may be a reasonable accommodation. An owner may not have hard-and-fast rules about how many animals are allowed. As with any other accommodation, the landlord may request from the verifier a description of the needed accommodation and information that shows the relationship between the person’s disability and the need for the requested accommodation.
9. Can I require the tenant to follow standard pet rules, such as requiring a dog to be on a leash, to be licensed by the county and to be current with vaccinations?
While you may set reasonable rules for the disabled tenant and assistive animals, these would be specific to the particular situation, rather than one-size-fits-all pet rules. For example, depending on the dog’s function, it may be not able to assist the tenant if it is on a leash. Also, assistance animals should be able to accompany the resident to all areas of the property, including the pool area (but not into pools and spas). These rules should be developed in consultation with an experienced fair housing attorney. If the animal has behavioral problems, the resident should be given a reasonable time to come into compliance with the rules. Consult your attorney prior to taking legal action.
10. Can I require the tenant to get insurance? Or ask for an additional deposit?
No. According to HUD, housing providers may not require persons with disabilities to pay extra fees or deposits, or obtain insurance as a condition of receiving a reasonable accommodation.
11. If the tenant’s request seems unreasonable, can I just say “no?”
No. A request is unreasonable if it (1) imposes an undue financial or administrative burden on the landlord; (2) would fundamentally alter the nature of the operation; or, (3) creates unreasonable health and safety risks. In those situations, you are required to negotiate with the tenant to come up with an alternative accommodation. Failure to engage in this “interactive process” can result in liability, even if the requested accommodation is completely unreasonable. Do not deny a request without consulting with your attorney.
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12. Security Deposits
According to a Joint Statement issued by the Department of Housing and Urban Development and the Department of Justice on May 14, 2004, a housing provider may not require an applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant to keep the assistance animal. However, if a tenant’s assistance animal causes damage to the applicant’s unit or the common areas of the dwelling, the housing provider may charge the tenant for the cost of repairing the damage (or deduct it from the standard security deposit imposed on all tenants), if it is the provider’s practice to assess tenants for any damage they cause to the premises.
VII
CONCLUSION
There are several lessons to be learned from the laws and decisions when it comes to accommodating a tenant with an animal. (1) Don’t ask the tenant about their disability. (2) If a tenant requests an animal as an accommodation for their disability, ask how you, as the property owner, can be sure that it is a service animal and not just a pet, so that other tenants don’t feel unfairly treated. (3) Ask tenants who make a request, to put the request and any information regarding the animal in writing. Keep these documents on file. (4) If you are skeptical about tenant’s disability, or whether the animal really helps the tenant, consult an attorney familiar with fair housing laws. (5) Don’t require the applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant to keep the assistance animal.
For more information about providing reasonable accommodations:
● HUD/DOJ Joint Statement on Reasonable Accommodations: http://1.usa.gov/1nkGLgV
● HUD Notice on Service Animals and Assistance Animals: http://1.usa.gov/1sTBeSj
● CAA Fair Housing Encyclopedia (Kimball, Tirey & St. John LLP). To purchase click here.
● CAA Forms Packet 60.0 – Assistive Animal Verification and Documentation
● CAA Form 60.1 – Assistive Animal Addendum
Note: Always get legal advice if you aren’t sure how to handle a disabled applicant’s or tenant’s request. Failure to promptly respond, or to negotiate with the tenant can result in liability. In addition, granting a request for an animal that is not required by law may create difficulties with other residents.