(This is the second in a series of future Practice Tips on California’s Fair Housing Regulations.)
QUESTION: I understand that there have been some changes to the Fair Housing laws in California. What are “Assistance Animals” and how should brokers and agents deal with them? What should I tell my clients who want information about this issue?
ANSWER: Yes, there have been changes to California’s regulations related to “Assistance Animals.”
BACKGROUND: Both California and federal fair housing laws require that individuals with disabilities be given equal access to housing that is also offered to individuals without disabilities. These laws require landlords 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, fair housing agencies and courts have regularly ruled that reasonable accommodations must be made to rental terms, policies and physical structures allowing Assistance Animals for disabled tenants; this applies to owners and buyers in a HOA, as well.
Here is a summary of the regulations after the changes promulgated by the DFEH in January, 2020:
DEFINITIONS
“Assistance Animals” includes Service Animals and Support Animals. An Assistance Animal is not a pet. It is an animal that works, 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
- An individual with an Assistance Animal shall not be required to pay any pet fee, additional rent, or other additional fee, including additional security deposit or liability insurance in connection with the animal.
- An individual with an Assistance Animal may be required to cover the costs of repairs for damage the animal causes to the premises.
- 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,
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 any reliable third party who is in a position to know about the individual’s disability or the disability-related need for the requested accommodation, including:
- 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.
- 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
An Assistance Animal need not be allowed if:
(1) The individual on whose behalf the accommodation was requested is not disabled.
(2) There is no disability-related need for the requested accommodation.
(3) The requested accommodation would constitute a fundamental alteration of the services or operations of the person who is asked to provide the accommodation.
(4) The requested accommodation would impose an undue financial or administrative burden.
(5) There is a direct threat to the health or safety of others, or would cause substantial physical damage to the property or others which cannot be sufficiently mitigated or eliminated by another reasonable accommodation.
BEST PRACTICE TIPS
- Real estate licensees representing landlords should not be making any determinations as to whether a person has a disability or if the Service Animal is qualified, or if the Support Animal is necessary.
- Landlords should be advised in writing to consult with their own qualified California Fair Housing attorney 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. There is currently a case in the courts to determine whether a person with an assistive animal must be allowed to enter if a resident has an allergy.
- Property Managers who are making rental determinations for landlords should retain and consult with their own qualified California Fair Housing attorney.
- All of these fair housing regulations apply equally to HOAs making reasonable accommodations for Assistance Animals for buyers of units 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.
© Copyright 2020 Broker Risk Management 02/28/2020