Feature
by Martin S. Snitow
On
January 26, 2001, a Presa Canario-mastiff dog named Bane, attacked
another tenant in the hallway of a San Francisco apartment building
where the two dog owners lived. The attacked tenant soon died. Bane
was destroyed and Hera, another dog that actually did not bite the
victim, was declared vicious after a police department investigation.
A landlord who knows a tenant’s animal is dangerous is at risk
for liability due to any injury or damage it causes. However, under
certain conditions, the law requires a landlord to permit a tenant
to keep an animal in a rental unit.
Service Dogs Are Not Pets
California law specifically prohibits refusal to rent to disabled
people who need a guide dog, signal dog or other service dog [Civil
Code § 54.1 (b)(6)(A)]. The blind or visually impaired use
guide dogs, the deaf or hearing-impaired use signal dogs, and other
disabled people use service animals. A service dog is individually
trained to meet the special requirements of an individual with a
disability, performing such tasks as protection, rescue, wheelchair
guidance and/or recovery of dropped items [§54.1 (b)(6)(C)(iii)].
These dogs are not considered pets nor are they dangerous attack
dogs.
This definition is based on federal regulations implementing the Americans with Disabilities Act ("ADA") [28 C.F.R. § 36.104]. The federal rules refer to guide, signal and service animals rather than the more specific term dogs. In practice, a high percentage of service animals are dogs.
Landlords Must Make "Reasonable Accommodations"
Both federal and California laws contain a more general requirement.
Landlords must make reasonable accommodations when necessary to
allow the disabled an equal opportunity to enjoy their dwelling
[Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B). Civil Code §
54.1(b)(3)(B)]. Federal regulations implementing the Fair Housing
Act Amendments of 1988 prohibit a refusal "to make reasonable
accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford a handicapped person
equal opportunity to use and enjoy a dwelling unit, including public
and common use areas"[24 CFR § 100.204]. The first example
in this regulation states it is a violation to refuse to allow a
blind person to have a seeing-eye dog.
Comfort Animals Are Not Service Animals.
No statute or regulation specifies that a landlord must allow a
disabled person to have a comfort animal. Unlike a service animal
that is trained to perform physical acts to aid a disabled person,
a comfort animal provides love, reassurance, social interaction
and other emotional benefits for a tenant. The animal does not have
to be trained to provide comfort since its function is to be there,
not to do a task. (All animals should be trained not to be a threat
or nuisance.)
Advocates of comfort animals such as the Delta Society say that comfort animals provide substantial health benefits, particularly to emotionally disabled persons. People with mental health or emotional problems may be considered disabled (or handicapped in the language used by the Fair Housing Act) if they meet the statutory definition [Please see last paragraph of this article]. The Delta Society publishes articles that assert animals can provide health benefits to persons with physical as well as emotional problems .
While comfort animals are not within the specific protections afforded service animals or dogs, disabled tenants may keep them in a no-pets apartment if they qualify as a reasonable accommodation and may be necessary for a disabled person to use and enjoy in their dwelling unit.
Is the Accommodation Necessary?
Care must be taken to distinguish between a disabled tenant who
has an animal that may be necessary and a tenant who claims to be
disabled as a ploy to keep a loved pet. A tenant is disabled if
his condition interferes with a "major life activity."
Once a tenant requests an accommodation, the landlord should consider
whether the information provided by the tenant shows that the presence
of the animal directly benefits that major life activity.
The concept of necessity requires "…at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability" [Bronk v. Ineichen (7th Cir., 1995) 54 F.3d 425, 429]. A self-trained dog claimed to be a signal dog is not necessary if its utility to plaintiffs was as a simple house pet.
In Nason v. Stone Hill Realty Association [(Mass. Superior Ct., 1996) 1996 Mass. Super. LEXIS 471, 3 Fair Housing – Fair Lending Cases, ¶18,197], the court asked: "how the presence of a cat, as opposed to some other therapeutic method such as chemical therapy, is essential or necessary to treating her symptoms." Some would say that reducing or eliminating the need for drug therapy is a health benefit by itself; but is it "necessary" to allow the tenant to use and enjoy the dwelling and common facilities? That is the standard in the statutes. Other courts have taken a more liberal view. A trial court in New York City found a mentally ill tenant’s need for a "therapy cat" may be grounds for challenging his eviction for violating a no-pets rule [Crossroads Apts. Assoc. v. LeBoo (N.Y. City Court, 1991) 578 N.Y.S.2d 1004].
Proof Required For An Accommodation
The proof required to show that any accommodation for a disability
is necessary depends on the facts [Bronk v. Ineichen, supra]. Sleeping
and eating are examples of major life activities. The tenant may
assert that his or her emotional condition interferes with these
activities. A health care professional may "prescribe"
the animal for therapeutic purposes. Courts disagree as to who must
prove that a particular accommodation is necessary.
A landlord faced with a request for an accommodation for a disability must tread carefully. A landlord cannot ask whether the person is disabled, what kind of disability he or she has or how severe the disability is [24 CFR § 100.202 (c). California Government Code § 12955 (b)]. "If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue" [Jankowski Lee & Associates v. Cisneros (7th Cir., 1996) 91 F.3d 891].
What Kind of Proof Should a Landlord Accept?
California provides for issuance of a special tag to owners or trainers
of assistance dogs, a term that includes guide dogs, signal dogs
and service dogs [California Food & Agriculture Law §§
30850-30852]. In Bronk v. Ineichen, supra, the Seventh Circuit ruled
that a landlord may not require a dog to have a certificate from
a state-licensed training school. However, a landlord may require
the dog to have a dog license where required by law. Some counties
will waive the license fee for assistance animals.
The tenant should be asked to provide proof of the disability and the need for an animal as an accommodation. The tenant is not required to provide any particular kind of proof, but must present some evidence that an accommodation is necessary. If a dog has an official tag or license showing that it is an assistance animal, the landlord can probably rely on that as evidence. However, comfort dogs are not eligible for such tags or licenses. Animals other than are not eligible to receive a tag or license. Tenants who want a comfort animal must show it is necessary in some other way.
Is The Accommodation Reasonable?
Even if allowing an animal is a necessary accommodation for the
tenant’s disability, a landlord need not approve the tenant’s
request unless the accommodation is reasonable. Whether the accommodation
is reasonable depends on how the cost to the landlord compares to
the benefit to the disabled tenant [Bronk v. Ineichen, supra]. If
there is no benefit, the accommodation is neither necessary nor
reasonable.
An accommodation that involves some cost to the landlord may be
reasonable. "Congress anticipated that landlords would have
to shoulder certain costs involved, so long as they are not unduly
burdensome" [United States v. California Mobile Home Management
Company (9th Cir., 1994) 29 F.3d 1413]. If the cost to the landlord
is great and the benefit to the tenant is less, the accommodation
may be necessary but not reasonable.
Why can’t the landlord simply accept as true any claim that
a tenant is emotionally disabled and needs a comfort animal? If
a landlord allows a tenant who is not actually disabled or does
not need an animal to have one, other tenants may complain. If that
tenant is white or childless, other tenants who are not allowed
an animal may feel discriminated against because of race or familial
status. The only defense to these claims is to show that allowing
the animal for the first tenant is a necessary accommodation for
a disability.
The risk of discrimination claims by other tenants may make it unreasonable to accommodate a tenant who does not provide convincing proof to support a request for a comfort animal. Defending a discrimination lawsuit is expensive and the cost of an adverse verdict can be enormous. This danger underlines the need for a landlord to request and keep documentary evidence that an animal allowed to remain despite a no-pets policy qualifies as an accommodation for a tenant’s disability.
There may be other situations in which a necessary accommodation is not reasonable. No landlord would want Bane or Hera, the dogs that attacked and killed a tenant, to live in an apartment. Some animal lovers have suggested that Hera could be allowed to live if her teeth were pulled or if she were lobotomized ("Pleas for Pardon of Dog Hera," San Jose Mercury News, Feb. 27, 2001). Since there is no way to know whether these measures would eliminate the risk to others, a landlord can not be expected to accept a dog known to be vicious.
A landlord who receives a request to allow a comfort animal should promptly seek legal advice. Each situation is unique and new developments may affect a landlord’s decision. If practical, a landlord might suggest a different accommodation that would be less costly or pose less risk of discrimination claims by other tenants.
Disability Regulations
"Handicap" means, with respect to a person, a physical
or mental impairment that substantially limits one or more major
life activities; a record of such an impairment; or being regarded
as having such an impairment… The term does not include current,
illegal use of or addiction to a controlled substance...[A] n individual
shall not be considered to have a handicap solely because that individual
is a transvestite.
"Major Life Activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 24 CFR § 100.201
Reasonable Accommodation:
Example (1): A blind applicant for rental housing wants to live
in a dwelling unit with a Seeing Eye dog. The building has a no
pets policy. It is a violation of § 100.204 for the owner or
manager of the apartment complex to refuse to permit the applicant
to live in the apartment because, without the Seeing Eye dog, the
blind person will not have an equal opportunity to use and enjoy
a dwelling. 24 CFR § 100.204 (b)
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Martin Snitow has been handling fair housing cases since 1985. He can be reached at 408-985-7575 or on the web. © Copyright 2001.