Two Sides One coin

Call Off Your Dogs

written by Daniel W. Wayne

The case for accommodating pets, support animals and service animals.

Support and Service Animals for Tenants with Disabilities
Landlords in California have a right to prohibit tenants from having pets in their homes. A “no pets” lease provision gives a landlord the right to sue a tenant for breach of their lease if they move in an animal without permission. However, while landlords may prohibit pets, tenants with a qualifying disability may be entitled to a support or service animal.

It is a common misconception that “support animal” and “service animal” are interchangeable terms. In fact, these terms have different legal definitions. Both may provide certain tenants with a way to have an animal regardless of what their lease says about pets.

Who Qualifies for a Support or Service Animal? 
To qualify for a support or service animal, a tenant must meet the definition of a person with a disability. The ADA—the federal law that protects disabled people from discrimination—defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities.

Under California law, the definition of disability is broader. It includes any mental or physical impairment, disorder, or condition that limits a major life activity. The definition of disability also includes a perception that the person has a disability, or that the person is associated with a person who has, or is perceived to have, a disability. 

“Major life activity” is of course, pretty vague. Examples include, but are not limited to, physical, mental, and social activities, and working. Whether a disability or condition “limits” a major life activity must be determined without regard to any mitigating factors, such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating factor itself limits a major life activity.

What is a Support Animal?

A support animal is an animal (of any species) that helps people struggling with a psychological disability. Animals have been shown to help reduce symptoms of depression, anxiety, and stress. A support animal is not necessarily trained—they simply provide support by being there. While support animals (also known as emotional support animals) need no special training, a person must still qualify as “disabled” to have a support animal. (Otherwise, it’s just a pet.) 

What is a Service Animal?
By contrast, a “service animal” is a dog (or miniature horse) that is trained to perform tasks or do work for the benefit of a disabled person. This is a legal term that comes from Title III of the Federal Americans with Disabilities Act (ADA).

The most common type of service animal is a seeing eye dog. Other examples of service animals are dogs that are trained to alert people who are deaf, pull a wheelchair, or help people with seizures. Most people assume service animals are only for people with a physical disability. But that’s not actually the case. People with psychiatric conditions can also qualify for service animals. 

What Must a Landlord Do?
Tenants with a qualifying disability are entitled to a reasonable accommodation in the form of a service or support animal in their home as a matter of law (see Unruh Civil Rights Act and Disabled Persons Act (CDPA), as well as under the ADA. In these instances, animals are more like assistive aids—like a wheelchair—than a pet.

To get a service or support animal, a tenant cannot simply move the animal into their home, but must first request a reasonable accommodation from their landlord. This typically comes in the form of a letter or prescription from a medical professional, such as a therapist or physician stating that the tenant qualifies as disabled, and that the animal helps to treat that disability, along with a letter requesting that they be allowed to have an animal despite any lease restrictions on pets. 

Under the ADA and California law, landlords are required to engage in a good-faith interactive process to determine whether they can provide reasonable accommodation that will enable disabled tenants to live in their units. 

If a landlord refuses a request for reasonable accommodation or to engage in the process, their tenants may have grounds for a lawsuit on the basis of disability discrimination. 

What Counts as “Reasonable”?
A request may be unreasonable if it creates an undue financial burden on the landlord, or fundamentally alters the nature of the housing. Requests that pose a threat to others aren’t reasonable. 

For example, a landlord who refuses to install a handrail in a disabled tenant’s bathroom may be at risk of a lawsuit. But the owner of an old two-story building who refuses to install an elevator system is likely not in violation of the ADA. 

In terms of support or service animals, a landlord might request that the animal be housebroken and well behaved. But if the animal poses no credible threat to property or residents, refusing the tenant’s request likely runs afoul of the law. 

Can a Landlord Ask the Tenant About Their Disability?
No. In evaluating a reasonable accommodation request that involves a service or support animal, a landlord is permitted to ask only two questions: 1) whether the animal is required because of the resident’s disability, and 2) what work or task the animal is trained to provide. Landlords aren’t entitled to specific information about the nature of a tenant’s disability. A landlord can request documentation showing that a tenant has a disability, and that they have a disability-related need for the animal.  

What if a Landlord Refuses the Tenant’s Request?
Again, if a property owner or manager refuses to engage in an interactive process or rejects reasonable accommodation request without grounds, a tenant may have cause to bring a lawsuit. In these lawsuits, tenants may be able to recover damages related to emotional distress, attorneys’ fees, and the loss of rental housing. In other words, the damages can be significant.

Furthermore, if a landlord refuses to allow tenants to move in support or service animals, tenants may move the animals in regardless. If the landlord then files an eviction lawsuit based on breach of contract, a qualifying tenant may have an excellent defense in court.  

What if My Tenant Just Wants a Pet?
Saying “no” to reasonable accommodations puts property owners at serious risk of expensive lawsuits, while potentially depriving tenants of a needed form of treatment.

But what about tenants who just want to have a dog, cat or other small animal? 

I would encourage property owners to consider opening up more of their units to allow tenants to keep pets. While animals present some measure of risk to a landlord—be it noise, smells or potential damage to floors, for example—animals can make a huge difference in quality of life. And I would argue that the benefit to the tenant outweighs the potential risks to the property.

Landlords have many options for limiting the potential risks allowing pets may entail, including demanding a higher security deposit for a tenant who wants a pet, or charging pet rent. So long as these terms are established upfront, there is no risk of violating local rent control laws. For those tenants with problem pets, landlords can still pursue eviction proceedings for nuisance if the need arises.

I spend a lot of time talking to tenants in the Bay Area. For many, many renters, being able to keep a dog or cat is their number one consideration when looking for a new home. And, as stated, once they find a pet-friendly place, they’ll do everything possible to stay there. I would bet that landlords who advertise their units as pet-friendly have more loyal tenants, and more qualified prospective tenants to choose from. 

Another consideration? Many of those residents who ask you to move in a pet may actually qualify for a service or support animal. A huge percentage of Bay Area residents live with mental and physical disabilities. In any given year, an estimated 18% of the US population deals with anxiety disorders alone. That tenant whose pet you say “no” to might very well come back with a valid doctor’s note. 

The fact of the matter is that in any normal city, landlords would not be able to refuse to allow pets outright on such a broad scale. But, in San Francisco, where there is no shortage of applicants lining up to pay the highest rents in the country, landlords have less incentive to provide concessions. However, animals provide companionship, comfort and generally make people’s lives better. 

What with massive housing costs and a tight rental market, it’s tough to be a tenant in the Bay Area these days. Landlords who deny their tenants pets or challenge a legitimate reasonable accommodation request may be adding to that difficulty, without making their own lives any easier. So, if you can, don’t be a dog of a manger. By being a pet-friendly landlord, you can help the culture shift to welcome tenants with companion animals—whether they’re disabled or not—when your next unit becomes available.  

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Daniel W. Wayne is a tenant attorney with Wolford Wayne LLP. He can be reached at 415-649-6203.