BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
This is the Part 2 of 4 Weekly Practice Tips on Fair Housing Laws and Regulations
Part 1 – Fair Housing Basics
Part 3 – Use of Criminal Records in Leasing
Part 4 – Advertising
SCENARIO: I am listing a property for lease and a prospective tenant has a service pet. The owner wants to reject the application and prohibit pets. Is this permissible? I am confused about service animals, support animals, and how we deal with them in real estate transactions. What is the difference and how must I deal with them in both sales and leases?
ANSWER: No. This is not permissible and may constitute discrimination. California has extensive regulations promulgated by the Department of Fair Employment and Housing (“DFEH”) covering fair housing issues. The question you are asking deals with the general heading of “Assistance Animals,” which includes both service and support animals.
BACKGROUND: Both California and federal fair housing laws require that individuals with disabilities be given equal access to housing, which is also offered to all other individuals. These laws require property owners to make “reasonable accommodations” when such accommodations are necessary to give a disabled tenant equal rights to the use and enjoyment of the property. To that end, courts and fair housing enforcement agencies have regularly ruled that reasonable accommodations must be made to rental terms, policies, and physical structures allowing Assistance Animals for disabled tenants. These rules apply to owners and buyers in an HOA. They also apply to businesses insofar as the business is engaged in the rental, sale, management, or operation of residential real estate, including common interest developments and mobile home parks.
The following is a summary of the DFEH regulations related to Assistance Animals
- DEFINITIONS
“Assistance Animals” includes Service Animals and Support Animals. An Assistance Animal is not a pet. It is an animal that provides assistance or performs tasks for the benefit of an individual with a disability, or provides emotional, cognitive, or similar support that alleviates one or more identified symptoms or effects of an individual’s disability.
- “Service Animals” are animals that are trained to perform specific tasks to assist individuals with disabilities, including individuals with mental health disabilities. Service Animals do not need to be professionally trained or certified, but may be trained by the individual with a disability or another individual. Specific examples include, but are not limited to:
“Guide dog”
“Signal dog” or other animal trained to alert a deaf or hard-of-hearing individual to sounds.
“Service dog” or other animal individually trained to the requirements of an individual with a disability.
“Miniature horses” meeting specified requirements.
“Service Animals in training” including guide, signal, and service dogs being trained by individuals with disabilities, persons assisting individuals with disabilities, or authorized trainers.
- “Support Animals” are animals that provide emotional, cognitive, or other similar support to an individual with a disability. A Support Animal does not need to be trained or certified. Support Animals are also known as comfort animals or emotional Support Animals.
- RULES REGARDING ASSISTANCE ANIMALS
- Assistance animals are not pets.
- An individual with an Assistance Animal shall not be required to pay any pet fee, additional rent, or any other additional fees, including additional security deposit or liability insurance in connection with the animal,
- Essentially, a tenant with an Assistance Animal must be treated as if the animal is not there. However, an individual with an Assistance Animal is responsible for the conduct of the animal (noise, messes, biting, threatening behavior), and may be required to pay the cost of repairs for damage to property or injury to persons.
- An individual may have more than one Assistance Animal. Each animal must be individually determined to meet the legal requirements for that animal.
- No breed, size, and weight limitations may be applied to an Assistance Animal.
- Animal vests, identification cards, or certificates are not in and of themselves documentation of either disability or the need for a reasonable accommodation,
III. WHO CAN CONFIRM THAT A PERSON HAS A DISABILITY?
Information confirming that the individual has a disability, or confirming that there is a disability-related need for the accommodation, may be provided by:
- A medical professional;
- A health care provider, including the office of a medical practice or a nursing registry;
- A peer support group, which are mutual support groups developed as alternatives to traditional medical or psychological treatments. They provide services such as education, peer mentoring, peer coaching, and peer recovery resource connections for groups of people with disabilities or people suffering from a wide range of trauma or illness;
- A non-medical service agency or person, including In-Home Supportive Services or Supported Living Services providers; or
- Any other reliable third party who is in a position to know about the individual’s disability or disability-related need for the accommodation, including a relative caring for a child with a disability, a relative caring for an elderly family member with dementia, or others in a caregiving relationship with a person with a disability. The determination of whether a third party is reliable must be determined on a case-by-case basis.
- ESTABLISHING THAT A REQUESTED ACCOMMODATION IS NECESSARY
The individual, or a family member or authorized person, must make a request to the landlord for a reasonable accommodation.
If an individual with a disability or their representative makes a request for an accommodation that provides reliable information about the disability and how the requested accommodation is necessary to afford the individual with a disability equal opportunity to use and enjoy a dwelling or housing opportunity, then the person considering the request may not request any additional information about the individual’s disability or the disability-related need for the accommodation.
The only permissible questions that can be asked by the landlord to determine if the animal is a Service Animal are: (1) “Are you a person with a disability?” and (2) “What is the disability-related task the animal has been trained to perform?”
The only permissible questions that can be asked by the Landlord to determine if the animal is a “Support Animal” are (1) “Do you have a mental or emotional disability?” (cannot ask what that is); (2) “Is the animal necessary as an accommodation for that disability?” and “What written evidence do you have of the disability from a person authorized to make that determination?” (i.e., See Section III above)
- DENIAL OF A REQUEST: The DFEH regulations have an extensive list of the grounds on which a request for a reasonable accommodation may be denied. It is up to the housing provider, NOT THE REAL ESTATE LICENSEE, in consultation with their local landlord-tenant attorney who is familiar with local, state, and federal fair housing laws. If there are conflicting or overlapping laws, generally the most strict will apply. If a landlord is denying a tenant applicant on these grounds, immediately report that to your manager or broker.
For more details on this subject, see CAR Legal QA&A “Landlord-Tenant Law: Pets and Assistance Animals” at: https://www.car.org/riskmanagement/qa/landlord-tenant-folder/PetsAnimals
PRACTICE TIPS
- Do not state in marketing materials, “No Pets.” While a landlord may have a “No Pet” policy, they must still make a reasonable accommodation for a person with an Assistance Animal. Their actual policy, under the law, is “No Pets, however, a reasonable accommodation will be made for tenants with an assistance animal. Please submit your application.”
- Fair housing testers may call regarding rental listings, disclose that they have an assistance animal, and ask if they have to pay a pet deposit, or other costs, as a result. The answer is always NO.
- Real estate licensees representing landlords should not be making any determinations as to whether a person has a disability or if the Assistance Animal is necessary for the claimed disability.
- Landlords should be advised in writing to consult with their own qualified local landlord-tenant attorney familiar with fair housing laws when deciding whether to accept or deny a tenant applicant asking for a reasonable accommodation involving an animal.
- When holding open houses (for prospective buyers or tenant applicants), it is best for real estate licensees not to attempt to make a determination whether to admit a person claiming that an animal is an Assistance Animal.
- If a Seller has allergies to animals, the best practice is not to hold open houses at all. In a recent case, the court was asked to determine whether a person with an assistive animal must be allowed to enter if a resident has an allergy. It appears that the case was settled since no court ruling has been made public.
- Property Managers who are making rental determinations for landlords should retain and consult with their own qualified local landlord-tenant attorney.
- All fair housing laws and regulations apply equally to HOAs and their restrictions on pets/animals, requiring them to make reasonable accommodations for Assistance Animals for buyers and renters within the HOA.
This Weekly Practice Tip is an attorney-client privileged document 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.