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.