BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
CAUTION: Rental Testers Looking for Discrimination in Rentals
There is a group in California called Housing Equality Legal Project which contacts rental listing agents posing as renters trying to identify those rental listing agents who incorrectly respond to inquiries about handicapped tenants.
This group typically will have a “prospective tenant” call to inquire about a rental and then ask about pets and if a pet deposit is required. Later this prospective tenant, or another prospective tenant, may call and state that one of the tenants is blind and ask whether a guide dog is acceptable and if there are any “pet deposits” for the dog. If the rental agent answers the questions wrong, or fails to return the call from the prospective tenant with the guide dog, a complaint for discrimination ensues.
While this is the current pattern of inquiries from this group, there are other fair housing groups, including HUD, which send testers looking for real estate agents who discriminate.
See Weekly Practice Tips entitled: “Don’t Be Guilty of Discrimination,” “Discrimination in Housing,” “Advertising Words Not To Use,” “Limitation on Number of Tenant Occupants,” and “Ethnic Composition of Neighborhoods.”
But focusing on the issue of pets in general and “Service Animals” in particular, in rental properties, remember these guidelines:
1. Pet Deposits Generally: California law is clear that, no matter what it is called, a landlord may not collect as a deposit from a tenant (in addition to the first month’s rent) in excess of two times the monthly rent for an unfurnished rental, and three times the monthly rent for a furnished rental. (But, the landlord can also collect a “Tenant Screening Fee” which is an amount that changes each year with a cost of living increase. The maximum for 2011 was $42.41.)
A landlord could separately designate a portion of the security deposit as a “pet deposit” but that is a bad idea for two reasons:
1. This amount so designated could then only be used by the landlord at the end of the tenancy for damages related to the pet; and,
2. This amount must be included within the above-allowed maximum amount – NOT in addition to that amount.
So, best practice is to just collect a security deposit with no designation as to a specific purpose.
2. No Discrimination in Housing: Federal fair housing laws require that disabled individuals be given equal rights to housing that is also offered to those without disabilities. Fair housing laws, both California and federal, require landlords to make “reasonable accommodations” when such accommodations are necessary to give a blind or disabled tenant equal rights to the use and enjoyment of the property. To that end, fair housing agencies and courts have regularly ruled that allowing such animals for disabled tenants is a reasonable accommodation.
According to the California Civil Code, a landlord cannot refuse to rent to a blind or otherwise disabled person (or, for that matter, persons licensed to train guide dogs), on the grounds that the person must be accompanied by a guide dog, signal dog or service dog. (See below for definitions of these dogs.) “Companion dogs” providing emotional support also fall into this category.
3. No “Pet Fee” Can Be Charged: A landlord is prohibited from charging any kind of pet fee or charge as a condition of granting such an accommodation. In addition, other types of pet restrictions often found in rentals, such as limits on type, size or breed, may not be applied.
4. Definitions of Dogs for Disabled Persons:
A. “Guide dog” means any guide dog that was trained by a person licensed under the Business and Professions Code, or as defined in the regulations implementing the Americans with Disabilities Act.
B. “Signal dog” means any dog trained to alert an individual who is deaf or hearing impaired to intruders or sounds.
C. “Service dog” means any 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.
5. Assistance Dog Tags: California Food and Agriculture Code provides that local animal control departments shall issue “Assistance Dog” tags for service dogs, guide dogs, etc.
6. Prospective Tenant’s Disability: A physical disability may be readily obvious to the observer. But the term “disability” is broadly defined in the law and includes “mental disability.” If the tenant’s disability and need for the animal are not obvious, the landlord may request written verification from the tenant’s health care provider or other credible party that: (1) the tenant meets the California definition of disability; and (2) the animal is related to, and needed because of, the disability.
3. Rental Rules Regulating Service Dogs OK: A landlord may establish reasonable house rules, or terms and conditions in the rental agreement that regulate the presence of such dogs. For example, a landlord may wish to implement a house rule, or lease requirement, such as:
“We normally do not allow animals unless its owner/guardian has an official assistance dog license or tag. Any prospective tenant with a guide dog, signal dog or service dog must show the landlord or agent the license and tag issued by the county animal control department or county clerk. If a prospective tenant requires a service animal that does not have an assistance dog license or tag, the prospective tenant should inform landlord in a letter, or write on the back of the rental application, why this is a reasonable accommodation for the disability.”
Landlords should be referred to their attorney for final approval of the language for such a rule.
PRACTICE TIPS FOR RENTAL AGENTS:
1. If you receive a call from a prospective tenant inquiring about pet deposits, it is best to state the amount of the security deposit required by the landlord, with no separate designation for a pet deposit. Discuss this with your landlords in advance.
2. If you receive a call from a prospective tenant stating that they are blind or have other disability, it is ESSENTIAL that you promptly return those calls and treat this person just like any other prospective tenant. Failure to return these calls, when other calls by rental testers are returned, has been the ground for allegations of denial of service discrimination.
3. A person with no apparent physical disability, who produces evidence that they are legitimately accompanied by a service dog, must be treated as having a disability.
4. It is illegal to comment on the person’s disability, or inquire into the nature or seriousness of their disability. Do not make a comment such as: “You don’t look disabled.” Always treat a person with a disability directly, personally and professionally as you would a person with no disability.
5. Ask to see the dog’s “Assistance Dog” tag. If a tenant has a dog with an assistance dog license or tag, photocopy the license, copy the tag number and give permission to proceed with a rental application right away.
6. If there is no license or tag but the prospective tenant claims the animal is a reasonable accommodation for a disability, you should ask the prospective tenant to write a letter, or write on the back of the rental application, why this is a reasonable accommodation for his/her disability.
7. If you have any questions as to how to proceed, advise the prospective tenant that you must obtain a decision from your client-landlord. Then contact your client-landlord and advise him/her to obtain advice from a lawyer who is familiar with fair housing laws.
DO NOT FORWARD TO CLIENTS. This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2012 01/20/12