When Must a Property Owner Allow a Tenant to Have an Animal?

Disputes often arise between property owners and tenants concerning the tenants’ right to bring an animal onto the property.  If this is not handled correctly, severe legal consequences can arise.

The rights of tenants to possibly bring animals onto rental property arise under Federal law through the Americans with Disabilities Act (ADA) and Fair Housing Act as well as through various California laws particularly the Fair Employment and Housing Act (FEHA). However, this often gets confusing as to which laws apply, what animals are covered, and what exceptions may exist.

There are three distinct categories of animals that may trigger tenant rights:

1.    SERVICE ANIMALS – Under both Federal and CA law, “Service Animals” are defined as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. These include:
(a) Service dog which assists an individual who has a mobility impairment with tasks including, but not limited to, providing balance and stability, retrieving items and pulling wheelchairs;
(b) Dog Guide which assists an individual who is blind or visually impaired with tasks such as, but not limited to, aiding in navigation and alerting the individual to dangers such as moving cars;
  (c) Hearing Dog which assists an individual who is deaf or hearing impaired by alerting the individual to the presence of sounds or people;
(d) Alert/Response Dog which alerts an individual to a seizure or other medical condition; and
(e) Psychiatric Service Dog which aids an individual with a cognitive, psychiatric or neurological disability.  A service dog must be individually trained to perform work or tasks directly related to the handlers disability.

2.    EMOTIONAL SUPPORT ANIMALS –  The protections discussed above do not apply to emotional support animals, also called therapy support animals. An “emotional support animal” is a dog or other animal that is not trained to perform specific acts directly related to an individual’s disability. Instead, the animal’s owner derives a sense of well-being, safety, or calm from the animal’s companionship and presence. Therapy dogs are often the pets of the therapist or psychiatric personnel of the particular institution or hospital where they bring comfort.

Significantly, neither Service Animals nor Emotional Support Animals are considered to be “Pets” when it comes to housing.

3.    COMPANION ANIMALS – Companion animals not individually trained to perform any specific kind of task. Instead, the principal service that companion animals provide is simply that – companionship. Under the law, they are considered as pets and their owners do not receive any rights to bring them onto property. However both Federal and California law allow the elderly to keep companion animals in housing owned or operated by the government. Federal law further extends this right in “government supported” housing which may mean that the right extends to elderly tenants under Section 8 leases.

Subject to certain restrictions, in California tenants have the right to bring their service dogs and emotional support animals to live with them in many circumstances. Landlords and other housing providers in California may not refuse to make “reasonable accommodations” in their rules or policies if such accommodations are necessary to afford a person with a disability the equal opportunity to use and enjoy a house or apartment. This means that a landlord or homeowners’ association that does not usually allow tenants or residents to keep pets on the premises may be required to allow an individual with a physical or mental disability to have an animal that provides disability-related assistance. Remember, these animals are not legally considered to be “pets”.  For the same reason, Landlords may not require applicants or residents to pay a pet deposit for a service dog, psychiatric service dog, or support animal, even if they do so for other applicants or residents.

If a tenant informs his or her landlord that a service animal or emotional support animal will be kept on the premises, the landlord must generally accept the tenant’s credible word and should respect the tenant’s right to maintain such animal in the home. When the disability or need for reasonable accommodation is not obvious, a landlord may ask the person with a disability for documentation that he or she has a disability and a disability-related need for the service dog or support animal. The tenant or boarder must then provide the landlord with reasonable medical documentation from a health care provider that confirms the existence of the disability and the need for reasonable accommodation. A landlord who asks for “proof” that a service animal is just that can easily lead to legal action against that landlord for discrimination if the demand is not allowed under law. Therefore, a landlord must be very careful in how the tenant is questioned.

A landlord may deny a request to keep a service dog, psychiatric service dog, or support animal in California as a reasonable accommodation if the specific animal poses a direct threat to the health or safety of others, or would cause substantial physical damage to the property of others. The determination must not be made on mere speculation or fear about the types of harm or damage an animal may cause or because of evidence about harm or damage that other similar animals have caused. An issue sometimes arises where a housing provider/landlord’s insurance company has restrictions on breeds of dogs in the insured’s policy. The insurance company may label certain breeds of dogs as “dangerous” in the policy. If a housing provider’s insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, this may be found to impose an undue financial and administrative burden on the housing provider.  However, before banning the animal, the landlord should confirm this with the insurance company directly.

We hope that you will find this Article helpful in your real estate activities.  Please feel free to forward this to any property owners  or others that you think may benefit from this information.  As always, if you have any questions about your real estate or any legal matter, please call us at (916) 966-2260 or email me at sjbeede@bpelaw.com.

This article is not intended to be legal advice, and should not be taken as legal advice.  Every case requires review of specific facts and history, and a formal agreement for service.