June 2017

Companion Animals or Pets? What Lawyers Need to Know

By Ashley Peterson

Attorney at Law

In the tight rental market here in San Diego, a common question both landlords and tenants face is a rental’s pet policy. If a landlord or a homeowner association has a strict “no pet” policy in a lease or rules and regulations, what do you do when faced with a tenant or owner who makes a reasonable accommodation request to have a service dog or companion animal in the unit? The answer can be complicated, but landlords must ensure they are in compliance with the law and that they are not discriminating against potential tenants on the basis of a purported disability. There are no bright line laws, and cases are fact dependent. Knowing the basics will be the start to helping clients make the right decisions.

The term “disability” under the Fair Employment and Housing Act (FEHA) is broadly defined to include any physical or mental impairment that substantially limits a major life activity. All landlords, property managers and homeowners associations in California are required to comply with FEHA regulations in the renting of residential properties. These regulations would also apply to hosts listing their properties on short term vacation rentals sites like Airbnb and VRBO.

Reasonable accommodations are exceptions to rules or policies necessary in order to allow persons with disabilities to have an equal opportunity to use and enjoy a dwelling as compared to persons without disabilities. This means residential housing providers must make exceptions to a “no pets” policy to allow persons with disabilities to use and live with a service or emotional support animal if requested.

It is housing discrimination for a housing provider to refuse to rent to a person who is blind or visually impaired, deaf or hearing impaired, or to a person with any other disability on the basis that person uses the services of a service dog. Cal. Civil Code § 54.1. A “service dog” is defined under both state and federal law as a “dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.” Cal. Civil Code § 54.2. Service dogs are not considered to be “pets” so they do not fall under any no pet policy that may be in place in any lease or condo rules, nor are they required to wear a vest to identify themselves. Housing providers will be required to make a reasonable accommodation for service animals if requested.

In contrast, companion animals used for therapy, comfort or emotional support do not qualify as service animals. Companion animals do not have to be trained to provide services to the owner, but they must provide a disability-related benefit to the disabled individual. The question of whether a companion animal is an appropriate and reasonable accommodation for a disability is a question of fact and not a matter of law. This means that landlords will need to analyze each request individually before making a decision on whether to allow or deny the reasonable accommodation of the companion animal. In the California case Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission, (2004) 121 Cal.App.4th 1578, a residential couple lived in a condo complex and suffered from depression. The condo complex had a strict no pet policy in their governing documents. The couples’ therapist prescribed a companion animal to help alleviate their depression symptoms. The couple requested that the condo association allow them to have a companion animal in their home and the association denied their request on the basis of the no pet policy. The court held that the condominium association unlawfully discriminated against these individuals who suffered from a disability in denying their request as the companion animal was an appropriate reasonable accommodation based on the facts of their situation. This case established that denial of a reasonable accommodation request for a companion animal could constitute unlawful discrimination.

In order to make this reasonable accommodation request, tenants should send a written request to the housing provider asking for an exception to the “no pet” policy in their unit to allow a service or companion animal based on their disability. The housing provider is entitled to ask for a copy of a doctor’s letter stating that this companion animal is a necessary accommodation given the tenant’s disability; however, housing providers must be careful not to ask the tenant to provide medical records, inquire as to the nature of the tenant’s disability, or ask to speak with the doctor about this disability as such information is protected by privacy rights. In order to determine if the animal is in fact a “service animal” the only questions a landlord is allowed to ask are (1) whether the animal is required because of a disability of the owner, and (2) what tasks the animal has been trained to perform. If the disabled individual provides a doctor’s letter, and the service or companion animal does not pose a direct threat to others, does not cause substantial physical harm to the property of others, or impose an undue or financial burden on the housing provider, the housing provider must allow this animal to reside in the unit as a reasonable accommodation.

It is important to note that a housing provider cannot require an individual with a disability who has requested a companion or service animal to charge a “pet deposit” or additional fee for allowing the animal in the unit. Doing so would be a violation of the Disabled Persons Act and FEHA. The only recourse for a landlord is that the Civil Code provides that the disabled person requesting the accommodation shall be liable for any damage done to the premises or facilities by his or her dog. Cal. Civil Code § 54.2. Furthermore, in the County of San Diego, the owner of every dog that is older than three months is required to vaccinate against rabies, so a landlord may require the tenant provide proof of the companion or service animal’s vaccinations since all persons residing in the county must comply with this law. (San Diego County Code Section 62.610, 62.620, Health & Safety Code §121690).

It is advised that landlords contact an experienced attorney before taking any action with regards to a tenant who has made a reasonable accommodation request concerning a service or companion animal. Violations of the FEHA and ADA can result in a complaint being filed against the landlord with the Department of Housing and Urban Development, with the Department of Fair Employment and Housing, or with the Superior Court. Complaints lodged with HUD or FEH must be filed within one year from the last date of the discriminatory act.