Can a landlord legally refuse to rent to a tenant who owns a dog (service animal), if the prospective tenant is disabled and the dog helps his disability?
If not, what if the disability is only psychiatric in nature?
And if not, how would the prospective tenant be able to prove to the landlord that his dog is for his disability?
If your lease prohibits pets (and many of them do) a landlord can initially refuse to allow a tenant to get a pet. Note that I said initially.If you are disabled and you need a service animal to provide service or emotional support, you have the right to ask your landlord to allow a pet in the premises regardless of the language in the lease. A service animal is not a pet.
A request for reasonable accommodation before one leases an apartment may be difficult. If prospective tenant applies to rent an apartment in “no pets” building, discloses his or her disability and asks for a reasonable accommodation to have a service animal, a landlord could simply refuse to rent based upon other criteria. For example, an African American or a family with children shows up to fill out an application for a rental and the landlord tells the applicant that the apartment has already been rented—classic examples of discrimination of housing discrimination
It might be difficult and expensive to prove that the landlord discriminated against the tenant based upon his or her disability.
If you suspect that a landlord has rejected your application to rent because you are disabled, you should file a complaint with the California Department of Fair Employment and Housing.
A guide dog for a blind person is a classic service animal. A landlord who refused a request for such an animal is clearly discriminating against the tenant based upon disability.
A request to allow an emotional support animal is a little more tricky, but your rights are still clearly defined under the law.
Discrimination under the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation. ( Right to Emotional Support Animals in “No Pet” Housing, Bazelon Center for Mental Health Law.)
I recommend that you read the entire article quoted above, as it provides a thorough analysis of federal law applicable to emotional support animals.
Asking your landlord to add a pet based upon your disability is called a request for a reasonable accommodation. Your request must be reasonable. For example, you cannot request that the landlord, to accommodate your disability, purchase Flynn, the bichon frisé best in show winner at this year’s Westminster Kennel Club dog show and add him to your lease. That would be unreasonable. It would also be unreasonable to get a big, untrained, vicious dog because the landlord could be liable if the dog bit someone in the building.
You must also be prepared to prove to the landlord that you are disabled within the meaning of the Americans with Disabilities Act.
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. (When California Landlords Must Allow Tenants to Have Service Dogs and Emotional Support Animals, by Zachary Duffly, Nolo Press)
Under California law, the health care provider who provides this documentation does not have to be a doctor. Documentation can come from other providers, including clinical psychologists, clinical social workers, or marriage and family therapists.
If your disability is psychiatricyou are absolutely entitled to request a reasonable accommodationthat could include owning a service animal.
If you are planning to request a reasonable accommodation to get a companion animal, you should also check out PAWS (Pets Are Wonderful Support). In San Francisco they are now a division of the Shanti Project . Their site provides a step-by-step procedure to request a reasonable accommodation to get a support animal. The PAWS suggestions about a health provider’s letter are simple, accurate descriptions of the legal requirements for such a letter:
In order to prove that a dog is a service or support animal, you may be asked to have documentation from a licensed professional (doctor, nurse practitioner, psychiatrist, other mental-health professional or social worker) stating that the animal is an essential part of treatment for a disability. A doctor’s letter must have two essential components.
- It must state that you have a disability. The disability does not need to be identified. 2. It must state that it is the professional opinion of the provider that is it essential for you to have a service/support animal.
From my point of view, a common mistake tenant can make is getting a pet (service animal) first and then attempting to justify the need for the animal later–after the landlord, during his annual, unannounced, illegal inspection, discovers Fluffy hiding in a closet. While the mistake is not irreparable if you make a timely request for reasonable accommodation, you don’t want to find yourself in court defending an eviction based upon your breach of the lease. You might win, but it will cost you a bundle of dough, and, believe me, it will only exacerbate the symptoms of your disability.
If your lease prohibits pets, make your request for reasonable accommodation in writing. If your landlord accepts your request, get it in writing.
If you are not disabled and your landlord refuses your request for a pet rather than a service animal, forget it. I’ve seen too many instances in which long-term tenants are forced to choose between their beloved dog and living in the streets.
How to Help Dave Crow Help You
Every once and awhile I will have to guess at a detail or two when I attempt to answer your questions. For example, I will often assume that a building was built before 1979, given the context of a question. When I make that assumption, it’s highly likely that I will assume that you live in a rent-controlled unit and answer your question using the standard of the San Francisco Rent Ordinance. That could be a problem for two reasons. If your building was built after 1979, it is not covered by the Rent Ordinance. Worse, what if you don’t live in San Francisco?
So, I thought it might be a good idea to give you a short list of details to consider and/or include when you write me.
When was your building constructed?
If you don’t know, you can find out by using the SF Assessor-Recorder’s website to find out. If that site is being funky (not unusual) ask around. Finally, take a look at your building. Victorian? That’s easy. The difficult ones are buildings built in the 1960s and 1970s, the big square ugly boxes reminiscent of the shit they’re building these days.
How many units are in your building?
That seems like a no-brainer. But it’s not so easy if you live in a single-family dwelling in which the landlord rents rooms. The Rent Board might consider each room as a unit depending on the facts. The other common scenario is the single-family house with an illegal in-law. Rent controlled? (By that I mean, subject to annual allowable increases?) Yes. This is a two-unit building because Illegal units are covered by the Rent Ordinance.
Do you live in a house?
If the house was built before 1979, it is subject only to the just cause eviction provisions of the Rent Ordinance and the landlord can increase the rent as much as he likes…within reason. However, if your tenancy started before 1996, the house is subject to the price control provisions of the ordinance.
Do you live in a condominium?
This can be difficult to ascertain if you live in a converted building. Ask the landlord or check the Assessor-Recorder site above. Condos are legal single-family dwellings, usually only subject to the just cause eviction provisions of the Ordinance. There is an exception, see Tenant Troubles: Are The Buyout Terms My Landlord’s Offering Acceptable?
How old are you? Are you disabled?
This may be applicable if you are a protected tenant under the Rent Ordinance.
How long have you lived in your unit?
This could be important to determine if you have a protected status or, as in the example above, if your tenancy in a house or condo is subject to price control.
How much is your rent?
Often this is the most important detail because it usually points to the underlying motive of the landlord for taking whatever action he is taking–he thinks you’re not paying enough rent.
What does your lease say about it?
The lease controls the terms of your tenancy. It is always helpful to me to understand how to apply the law to your problem when I know if there is an applicable term in your lease. For example, if you are having a problem adding a new roommate, I need to know if the lease absolutely prohibits subleasing or if subleasing is subject to the landlord’s written consent. The ordinance is different for each scenario.
Details, details, details.
If the landlord is harassing you, I want to know how. Does the landlord like to watch you sleep? It’s important to understand if your lease has a clause prohibiting pets and you just adopted a baby gorilla. It’s also important to know about the gorilla because other laws may apply. Sometimes little details can shed light on an issue you may not know you have.
Obviously, this format has its limits. If you know your unit is rent controlled you can just say so. I want the gory details that make your case unique. They help make this column more interesting and fun.
Oh yeah, if you live in Oakland, I need to know that, because they have a different Rent Ordinance. If you live in Daly City, I also need to know that, because they don’t have jack to protect tenants except feudal (California) law.
I’m at 48 Hills to answer your landlord-tenant questions every Wednesday, so send them to me at Askdave@48hills.org
The opinions expressed in these articles are those of the author and do not constitute legal advice. The information provided is general in nature. Seek the advice of a tenant attorney for any specific problem or issue. You understand that no attorney-client relationship will exist with Dave Crow or Crow & Rose, Attorneys at Law unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.