Assistive Animals for the Disabled
Revised May, 2011
Disabled persons are permitted to be assisted by animals on both residential and
commercial rental properties, not withstanding a landlord’s rules to the contrary. Federal as
well as California laws provide for such assistance. The intent is not to give disabled
persons more rights than others, but to allow them to enjoy equal opportunities and equal
access. In order to qualify to have an assistive animal, the person requesting it must fit
within the definition of “disabled”. In California, the definition is quite broad. It includes
physical or mental impairments or medical conditions which limit a major life activity, or
having a record of disability, or being regarded as being disabled. Although one qualifies
as disabled, there are still some restrictions on the use of an assistive animal. The use of
the animal must be related to the disability and necessary because of the disability. If these
conditions are met, owners or managers of real property are expected to allow an
exception to the rules that apply to non- disabled persons (such as “no-pet” policies or pet
size, number or weight restrictions).
Residential Properties
Request. A housing provider may not inquire as to whether a person is disabled and
needs special assistance (such as use of a assistive animal) unless the housing
provider is operating under a federally-subsidized housing program which requires proof
of disability in order to qualify for the program. After qualification, the procedure does not
vary between subsidized and non-subsidized properties. All residential rentals are
subject to the guidelines published by the U.S. Department of Housing and Urban
Development (HUD) and the U.S. Department of Justice (DOJ) in 2004, designed to
address exceptions to a landlord’s rules because of disability (“reasonable
accommodations”). Those guidelines provide that a request need not be in a standard
format and that the landlord may not refuse a request for an accommodation just
because an applicant or resident does not put the request in writing. If an oral request is
made, we recommend that the landlord document the request and attempt to get the
resident to sign or initial that the writing is a correct statement of what is being requested.
If the resident refuses, or is unable to sign or initial, a landlord should consider making a
notation to that effect on the document.
Verification. Pursuant to the HUD/DOJ guidelines, no verification is necessary if the
disability and the disability-related need for the accommodation are apparent. For
instance, if a person is obviously blind and wants to have a seeing-eye dog as an exception to
a no-pet policy, the landlord would not need documentation to prove that it was
reasonable to allow the animal. If the disability or the disability-related need for
the accommodation are not apparent, the landlord may ask for written verification of
whatever aspect is not apparent. If it is unclear whether the verification provided is legally
sufficient, it is wise to seek input from fair housing experts.
Verifiers. The HUD/DOJ guidelines also expanded the acceptable sources of
verification. A resident may now provide verification from:
1. a doctor or health care professional; or
2. a peer support group (there is no definition of this category, but we think it is
reasonable to believe that it may mean Alcoholics Anonymous or similar organizations);
or
3. a non-medical service agency (perhaps a group like the American Cancer Society);
or
4. a reliable third party (it is our opinion that this person should be qualified to the
extent that his or her testimony would be acceptable as credible evidence in a court hearing);
or
5. “self-verification” (for instance, it is likely that providing something such as written
proof of receipt of Social Security Disability Income would suffice as self verification
of a disability…although additional verification of the disability-related need might
still be
necessary).
Reasonableness. Once verification is apparent or provided, the landlord should
determine if the request is reasonable under the circumstances. The landlord is
not required to allow an accommodation that would create an undue financial or
administrative burden or change the nature of the operation of the business. Most requests
for animals are deemed to be reasonable, notwithstanding a no-pet policy. Even if a landlord
allows pets, the policies established for regulating pets do not apply to
assistive animals. Thus, all pet restrictions should be disregarded and the reasonableness
of each disability accommodation request should be analyzed on a case-by-case basis.
Here are some Do’s and Don’ts to consider:
1. Don’t require that the animal be trained. (See below, for the distinction between
accommodations for residents and rules regarding public access under the Americans with
Disabilities Act). Many court cases have determined that animals which provide emotional
support are included in the definition of assistive or service animals. Additionally, neither
the federal Fair Housing Act nor California’s Fair Employment and Housing Act require
that an assistive animal be specially trained.
2. Don’t charge pet rent, extra insurance, a pet deposit or any additional fee or deposit
because of the animal. This animal is not considered a pet under fair housing law. If the
animal damages the premises, the repair expenses may be deducted from the ordinary
deposit, as with any other expenses for damage in excess of ordinary wear and tear, pursuant
to California security deposit requirements.
3. Don’t apply number, height, weight, poundage, type or breed restrictions that are
outlined in pet rules. Approval or denial of an assistive animal should be based on whether
having the animal(s) on-site is reasonable. One disabled resident might need more than one
animal and if there is more than one disabled resident in a household, each request from each
disabled resident should be separately evaluated. As far as size, a support elephant would not
be reasonable. From the standpoint of type of animal, a dangerous one (such as a
rattlesnake) would not be reasonable, but many unusual animals could be. Monkeys have
been trained to perform tasks for the physically disabled. Breeds such as Pit Bulls or
Rottweilers (who are considered by many people to be “dangerous”) are often used as
assistive animals. You should be able to require a written statement from the resident,
warranting that the animal in question is not dangerous. Then you may address any behavior
issues that arise. If your insurance company does not wish to insure certain breeds, our firm
can contact them on your behalf to attempt to get a waiver for the purpose of accommodation.
Insurance companies are required
to comply with fair housing laws too.
4. Don’t require compliance with pet rules, because an assistive animal is not
considered to be a pet under the law. However, landlords should be
able to establish reasonable rules of conduct for assistive animals that
the resident signs nd agrees to abide by. These rules should not be
more stringent that the property’s pet rules.
5. Do have written policies in place for dealing with all disability-related requests, and
document interactions with residents in order to reduce the likelihood of a lawsuit based on
failure to accommodate. Our firm has drafted forms for disability accommodation policies
and procedures, including a lease addendum for assistive animals.
6. Do be sure that all staff members are aware of the applicable fair housing rules for
assistive animals, or at least know not to make comment about the issue, but rather to refer
a request to a supervisor. They should also be aware that trainers of assistive animals for
the disabled who apply for residency are entitled to the same rights with regard to the
animal they are training as disabled persons would be.
7. Do allow disabled guests to bring assistive animals with them when they visit
residents. If the disability, relation, and need are not apparent, it is a challenge to attempt to
require proof that the animal is an assistive animal when it is there on a temporary basis.
Unless the guest is on-site very often, or for long periods of time, it may not be productive to
try to address the issue.
Commercial Properties (and public areas of residential properties)
Commercial properties have fewer specific regulations on the issue of animals. The Americans
with Disabilities Act (ADA) addresses all places to which the public is invited, and California’s
Unruh Act (Civil Code section 51 and following) addresses places that conduct “business” in
the state.
These laws are not as detailed on the issue of assistive animals as the fair housing
laws discussed above. However, it is clear that the purpose of the code is to allow
tenants of commercial properties and members of the public who visit residential or
commercial properties to be accompanied by assistive animals. Under the ADA, the
public is allowed to bring only trained dogs and miniature horses to public places (see
the KTS legal alert on ADA changes, May 2011).
Just as with guests in residential properties, the landlord does not have much ability to
control visitors who claim that the animal they bring on-site is allowed as an assistive animal.
The issues that would be worth addressing would likely relate to any unacceptable conduct
of the animal.
With regard to tenants, or employees of tenants however, the landlord may reasonably exert
some control. If a landlord wishes to establish rules which may be enforceable with regard to
the presence of animals, the rules should be in writing and should be part of the lease or
addendum. If tenants or employees of tenants indicate that they are entitled to an exception to
the rules based on disability, it is not clear that the procedure used in fair housing laws
applies.
Nevertheless, a landlord may be able to make a logical argument that in order to qualify for an
exception, the tenant or employee should verify the right to the exception and, if that is so, the
procedure used could resemble the one used for residents in rental housing
Conclusion
Disability is the most common basis for fair housing discrimination complaints in California
residential rental communities. ADA and Unruh Act violations are also common claims made
by visitors or tenants in commercial properties or the public areas of residential properties.
These lawsuits are very time-consuming and expensive to defend, so it is important to make
informed risk management decisions when such issues arise.