Comfort Animals and Fair Housing

By Martin S. Snitow

On January 26, 2001, Bane, a Presa Canario-mastiff dog living with two tenants, attacked another tenant in the hallway of a San Francisco apartment building. The attacked tenant soon died. Bane was destroyed, and Hera, another dog which did not actually bite the victim, was declared vicious after a police department investigation. While a landlord who knows or should know that a tenant's animal is dangerous risks liability for the injury or damage it causes, the law sometimes requires a landlord to permit a tenant to keep an animal.

Disability Regulations

Handicap means, with respect to a person, a physical or mental impairment which 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)

Service Dogs Are Not Pets.

Guide dogs for the blind or visually impaired, signal dogs for the deaf or hearing impaired and service animals for other disabled people are not pets. Certainly they are not dangerous attack dogs. 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).

A service dog is one which is individually trained to the requirements of an individual with a disability, such as protection, rescue, pulling a wheelchair or fetching dropped items. §54.1 (b)(6)(C)(iii). 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 dogs. The federal rules can apply to animals other than 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 the 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 which 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 comforting 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 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. [See sidebar.] 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 a dwelling unit.

When Is An Accommodation Necessary?

Care must be taken to distinguish animals which may be necessary for a disabled tenant from situations in which a tenant 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. [See sidebar.] Sleeping and procreation are examples of major life activities not mentioned in the regulations. See McAlindin v. County of San Diego, (9th Cir., 1999) 192 F.3d 1226, 1233. Pack v. Kmart Corp, (10th Cir., 1999) 166 F.3d 1300, 1305. Colwell v. Suffold County Police Dept., (2nd Cir., 1998) 158 F.3d 635, 643. 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.

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 plaintiffs quality of life by ameliorating the effects of the disability." Bronk v. Ineichen (7th Cir., 1995) 54 F.3d 425, 429. [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.

Open a Dialogue With the Tenant.

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.The proof required to show that any accommodation for a disability is necessary depends on the facts. Bronk v. Ineichen, supra.

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 of 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. Nor can animals other than dogs receive a tag or license. Tenants who want a comfort animal must show it is necessary 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.

In some situations even a necessary accommodation would not be reasonable regardless of the cost. No landlord would want Bane or Hera, the dogs who 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, it is not reasonable for a landlord to accept a dog known to be vicious.

Beware of Claims From Other Tenants.

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.

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.

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