J & N REALTY, INC.

Accommodating Persons with Disabilities  

INTRODUCTION  

Many owners protect their investment by not allowing any (or certain types) of pets on the property due to possible damage by the pet and the fact that existing law may not allow an adequate security deposit to cover the damage.  However, recent laws on fair housing and accommodating persons with disabilities now restrict the ability of owners to have an “absolutely no pets” policy.  

A guide dog leading a blind person is the image that usually comes up when one thinks of a service animal helping a disabled person.  However, guide dogs are not the only type of animal which can be considered a “necessary and reasonable accommodation” and federal and state anti-discrimination laws broadly define disabilities to include both physical and mental impairments.  

FEDERAL LAW  

A. The Federal Fair Housing Act (FHA)  

The Federal Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, requires property owners to make reasonable accommodations for a person with a disability, to enable them to enjoy the residence on an equal basis with tenants who are not disabled.  42 U.S.C. §3604(f)(3)(B).  

The fair housing regulations state, “It shall be unlawful for any person to refuse 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 areas.”  24 CFR §100.204(a).  

The only specific mention of pets or service animals in either the law or regulation is the following illustration given in the regulations that address an owner’s failure to make a necessary and reasonable accommodation:  

A blind applicant for rental housing wants to live in a dwelling unit with a Seeing Eye dog.  The building has a no pet’s policy.  It is a violation…for the owner or manager… to refuse to permit the applicant to live in the apartment with a Seeing Eye dog 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).  

1. What kind of animal is a necessary and reasonable accommodation?  

Although it is clear that the FHA does require that service animals be allowed in a residential dwelling when reasonable and necessary to afford a disabled individual fair use and enjoyment of the property, it is not clear what type of animal is “necessary and reasonable.”  A federal appeals court has ruled that the reasonableness of a requested accommodation is a question of fact, determined by close examination of the circum­stances.  US v. California Mobile Home Park Management Co., (9th Cir. 1994) 29 F3d 1413.  To be reasonable, the accommodation “must facilitate a disabled individual’s ability to function and it must survive a cost benefit analysis that takes both parties’ needs into account.”  Bronk v. Ineichen (7th Cir. 1995) 54 F3d 425.  

a. The animal must facilitate the disabled individual’s ability to function.  To prove that an accommodation is necessary, a plaintiff must, at minimum, show “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 F3d 425.  In Bronk, the property owner argued that the tenant’s dog was not a service animal because it had no formal training.  The court ruled that the jury should evaluate the dog’s ability to help the plaintiff and assign its own weight to the lack of formal schooling.  In some situations, no training may be necessary for the animal to ameliorate the effects of a tenant’s disability.  A HUD administrative law judge has ruled that a dog with no particular training was a necessary and reasonable accommodation for a tenant with severe recurring depression.  HUD v. Riverbay Corp., HUD ALJ 02-93-0320-1. 

b. Restrictions on type of animal.  Because the act does not define “rea­sonable accommodation,” there is no clear guidance on what types animals must be allowed as accommodations for disabled tenants.  Dogs are the most common, but not the only animals, requested by tenants.  In some circumstances, other animals such as cats or monkeys could arguably be necessary and reasonable accommodations, as long as they ameliorate the effects of the tenant’s disability.  

c. Licensing or training requirements.  Property owners cannot require that a service dog have certificate from a state-licensed training school.  Bronk v. Ineichen, (7th Cir. 1995) 54 F3d 425.  By analogy, an owner could not demand that an assistance dog have an official tag.  Again, the issue is whether the animal facilitates the individual’s ability to function.  This may or may not require special training or licens­ing.  

2. What is a disability?  

“[A] physical or mental impairment which substantially limits one or more major life activities…  “such as caring for one’s self (sic), performing manual task, walking, seeing, hearing, speaking, breathing, learning, and working.”  24 CFR §100.201.  A landlord cannot ask whether the person is disabled, what kind of disability the person has or how severe the disability is.  24 CFR §100.202.  “If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent on the landlord to request documentation or open a dialogue” with the tenant.  Jankowski Lee and Assoc. v. Cisneros (7th Cir1996), 91 F3d 891.  Since the owner cannot ask about the disability, the owner should ask for documents showing that dog or other animal is a reasonable accommodation and how it is necessary for use and enjoyment of the build­ing.  

B.  Americans with Disabilities Act (ADA)  

The ADA does not apply to private residential rental properties, except to the extent that the property is also a place of “public accommodation.”  For example, the ADA would apply to an apartment complex rental office and to a unit used as a retail store, for example.  The ADA specifically requires that service animals used by disabled individu­als be allowed in places of public accommodation.  ADA Title III, §36.302  “Service animals” include guide dogs, signal dogs and or other animals individually trained to do work or perform tasks for the benefit of an individual with a disability.  ADA Title III §36.104.  

Although they are not directly applicable, agency interpretations of the term “service animal” under ADA can shine some light on what animals (at minimum) could be consid­ered reasonable accommodations language under the Fair Housing law.  It is important to remember that the FHA is broader than the ADA, because it allows any animal if it is a necessary and reasonable accommodation, rather than just “service animals” with a particular type of training.  

Under the ADA, it is clear that an animal other than a dog can be a service animal, as long as it has the training to be “service animal.”  In an opinion issued by the US Attorney General-Civil Rights Division, a disabled individual entering a hotel accompanied by a monkey as a service animal is presented as an example of a situation where the ADA applies.  Opinion letter of USAG, Civil Rights Division to Corey Hudson 10/26/92 DJ#192-06-00029.  

CALIFORNIA LAW  

California’s fair housing law (the Unruh Civil Rights Act) mirrors the language of the federal Fair Housing Act.  “Any person renting, leasing or otherwise providing real prop­erty for compensation shall not refuse to make reasonable accommodations in rules, policies, practices, or services, when those accommodations may be necessary to afford an individual with a disability equal opportunity to use and enjoy the premises.”  Civil Code §54.1(b)(3)(A).  

A. What type of animal is a reasonable accommodation?  

Like the federal act, California does not define “reasonable accommodation.”  The California law’s main departure from federal law is that it allows owners with a “no dog” policy to refuse to rent to an individual with a disability who has a dog, unless the dog meets certain requirement.  Civil Code §54.1(b)(6)(c).  The dog must be a “guide dog,” a “signal dog” or a “service dog.”  A “service dog” is “any dog individually trained to the requirements of the individual with the disability, including but not limited to minimal protection work, rescue work, pulling a wheelchair or fetching dropped items.  This means a tenant could not establish that a dog is a reasonable accommodation for his/ her disability, unless the dog has a particular type of training.”  California law also pro­vides for issuance of a special tag to owners of guide dogs, signal dogs and service dogs, but does not require use of the tag.  F & A Code 30850-30852  

The California law completely fails to address service animals that are not dogs.  As a result, an owner with a “no pets” policy may have to allow a cat or other animal if it is a reasonable accommodation, even if it is not trained as a service animal.  

B. What is a disability?  

The California Civil Code defines disability in essentially the same way as federal law.  “[A] physical or mental impairment that substantially limits one or more major life activi­ties of the individual.”  Civil Code § 54(b).  California law also forbids property owners from inquiring about the disability of any person seeking to rent any housing accommo­dation.  Government Code §12955(b).  

RELATIONSHIP BETWEEN STATE AND FEDERAL LAW  

It is clear from court decisions and agency interpretations of the federal fair housing law and the ADA that federal law controls when it is more protective of the disabled person...  In the Bronk case, the court ruled that it was wrong to use standards borrowed from state and local laws to evaluate the concept of “reasonable accommodation” under the federal fair housing law, because the state and local laws were narrower (they required formal training).  The U.S. Attorney General has also stated that the ADA does not preempt State law, if the State law provides protection greater than that provided by the ADA.  The ADA does, however prevail over conflicting state laws that provide lesser protection.  Opinion letter of USAG, Civil Rights Division to Corey Hudson 10/26/92 DJ#192-06-00029.  

As a result, an owner who complies with California law, could still be in violation of federal law.  As discussed above, the question is whether the animal helps the particular tenant with his/her disability.  

PUBLICLY OWNED HOUSING  

California Law requires that public agencies that own or operate rental housing accom­modations cannot prohibit a “person requiring supportive services” as defined in Health & Safety Code §50685.5.  Or an elderly person (over 62) from keeping not more than two pets.  Health and Safety Code 19901.  This law does not require the animal to be a “service animal” at all.  

CONCLUSION  

Unfortunately, the conclusion is that neither an owner nor a tenant cannot know what a reasonable accommodation is, until it is decided by a court.  However, there are several lessons to be learned from the laws and decisions so far.  (1) Don’t ask the tenant about their disability.  (2) If a tenant requests an animal as an accommodation for their disabil­ity, ask how you, as the property owner, can be sure that it is a service animal and not just a pet, so that other tenants do not feel unfairly treated.  (3) Ask tenants who make a request, to put the request and any information regarding the animal in writing.  Keep these documents on file.  (4) If you are skeptical about tenant’s disability, or whether the animal really helps the tenant, consult an attorney familiar with fair housing laws.