Pets in the Unit: Know Your Rights!

Incidents involving disruptive animals in airplanes have garnered much attention recently because farm animals like pigs and peacocks don’t seem a good fit for a tight cabin. Yet they may fly as ‘emotional support’ animals under federal rules. Tenants can claim the same accommodation and may use it to keep a landlord from turning away a pet. But is that advisable? Let’s take a closer look at pets in apartments and review the tenant’s options.

Landlords Mostly Have the Discretion

A landlord has wide latitude to regulate the keeping of pets on his property. The city’s ordinances permit the keeping of domesticated animals but a landlord is free to set a more restrictive policy: he may ban pets entirely or allow animals but impose a monthly charge (and/or demand an additional deposit). Either is perfectly legal; it is up to the landlord’s discretion. He can even allow a neighbor to keep a pet but prohibit one for the tenant next door. The law has no remedy for inequitable treatment when it comes to the keeping of animals in apartments.

Localities can enact all manner of protections for tenants. Beverly Hills, unfortunately, unlike other rent-stabilized cities, has adopted no pet-specific provision in city ordinance. So where City of West Hollywood has created exceptions to pet prohibition for seniors, disabled and persons living with HIV/AIDS, and even allows a tenant two pets under some conditions, tenants in Beverly Hills can only look to state law – and that’s cold comfort for the animal lover. Our city could – like West Hollywood – allow tenants to replace pets after a their loss (regardless of whether the terms of tenancy have changed to ban pets) but City Council hasn’t chosen to do so.

In West Hollywood the city will enforce pet provisions because they are local law; in Beverly Hills the tenant must bring a private civil action. For tenants in Beverly Hills the regulation of pets in apartments rests almost entirely with the landlord.

Negotiating a Pet Provision

It is always a good idea to review the lease before move-in because that is the appropriate time to be clear on the landlord’s pet policy. Because the agreement rolls over into a month-to-month tenancy after the lease expires, the terms that a tenant agrees to at signing will tend to govern the duration of the tenancy. So make sure that the lease (and follow-on agreement) protect your interest to keep an animal. Don’t expect, for example, to move-in a 90-lb dog if the lease has a strict weight limit clause.

The tenant about to sign a lease can negotiate to have any clause amended or removed before signing. (Remember: ALL lease terms are negotiable.)

Landlords generally have the upper hand because they tend to use a lease template provided by an apartment owner association, say. Often such a template will reflexively prohibit pets. Yet a landlord who is reluctant to allow pets, or only allow dogs under a certain weight, say, may be persuaded to soften the stance by the offer of a monthly pet charge or a substantial pet deposit.

(I recommend the latter because monthly charges add up while the pet deposit is separate and apart from the standard deposit under state law. The pet deposit covers pet damage only, so the landlord cannot withhold the pet deposit in the event of a dispute unrelated to the pet. The tenant who agrees to a monthly charge should know that the charge is not included in the base rent, so it is NOT incrementally increased when the rent is increased. It it is separate from the base rent.)

Again, the best time to get straight with the landlord about keeping an animal in the apartment is before move-in. The tenant already in residence and who has already brought in an animal may be protected by the landlord or manager’s tacit agreement – he has accepted the presence of the pet without objection – but explicit agreement up front is best.

The tenant who wants to bring in a new animal under a no-pet policy should ask for permission rather than ask for forgiveness later. She should consult the lease for the exact terms and then make the best case for bringing in a furry (or feathered) friend: provide pet references from a prior landlord, if available; submit a ‘pet resume’ that puts her animal in the best light; present certifications that show the dog is trained; and take the initiative to suggest a pet agreement.

(Compare a sample tenant pet agreement with a pet agreement template suggested by a landlord association to see how a tenant-friendly version is the better conversation starter.)

If it is a dog to be permitted, the tenant should have him or her licensed. It seems like a small detail but it is required by law and it’s good to have in hand should the landlord ask. It’s just $20 from City of Los Angeles animal control. These and other strategies are available in the helpful Every Dog’s Legal Guide from Nolo Press (which is available in the BH library).

A note on disparate treatment. It may seem reasonable to conclude that the presence of a pet in one apartment is tacit permission to keep one yourself. The landlord, though, has the discretion and can make different agreements with various tenants just as he can be selective about the kind of animal or even specific breeds of dog (no matter that breeding is largely subjective). He can allow certain weight classes. And he can apply these clauses disparately. That is, a landlord can allow one tenant in the building to keep multiple big dogs yet prohibit another from keeping even a single parakeet. The landlord need offer no reason for doing so.

Service Animals Do Get a Pass

Landlords have wide discretion to regulate animals in their properties but there is one arena where the landlord has relatively less control: reasonable accommodations for those with disabilities. Federal laws mandate protection for a tenant with a disability, but the extent of protection when it comes to housing varies with the disability and the assistance required. Don’t assume Fido gets a pass from the landlord because he has has his online certificate and sports a red vest!

Under the Americans with Disabilities Act, a landlord cannot discriminate against a tenant with a service animal as defined in federal and state law). These animals are trained to perform certain tasks; they are not pets. That includes a dog, say, who assists a sight- or hearing-impaired guardian as well as animals that signal or otherwise assist with personal tasks like getting dressed.

In sum if the dog is trained and certified and enables his guardian to enjoy her home, then landlords may not turn the animal away nor discriminate when it comes to screening new tenants. They cannot charge extra for the animal or even ask for a pet deposit. They can’t restrict for breed or weight. The landlord that turns away a tenant with a service animal invites a discrimination lawsuit and pro-bono housing rights organizations are ready to bring that action.

These animals get a pass, but that does not mean that a tenant can put a fake ‘service’ vest on an untrained dog. It won’t fool anyone but could well attract a neighbor’s unwanted attention (and shortly thereafter a notice to find Fido a new home). Indeed misrepresenting an animal as a service animal may hasten eviction. The landlord can post a 3-day notice to correct or quit and, arguably, that landlord would be justified if the tenant had made that fraudulent misrepresentation.

Emotional Support Animals Get a Workaround

As a practical matter most landlords aren’t concerned about service animals anyway because they are trained, well-behaved and relatively few in number. Of much greater concern to landlords are animals that tenants present as necessary but fall into a less-definable category like ‘therapy’ or ‘emotional support.’

From the tenant’s perspective, an emotional support animal may palliate anxiety, relieve stress, or alleviate fears concerning personal safety. These are every bit as important to supporting daily functions as is a service animal in my view. Accordingly, federal law recognizes emotional support animals. That’s why then can fly in an airplane cabin. The documentation provided to airlines is usually just a form letter and you might pay a doctor fifty bucks for the privilege.

However housing is more of a challenge because animals who provide comfort or emotional support do not qualify as service animals under the Americans with Disabilities Act. Instead the federal Fair Housing Act amendments and the California law on disabilities and accommodations kicks in. The laws don’t require a landlord to accept a put but rather to make a ‘reasonable accommodation’ for a support animal so long as it does not put an ‘undue burden’ on the landlord. These animals are an accommodation for a condition that ‘impairs’ a life activity rather than the Americans with Disabilities Act’s higher standard of a “substantially limiting” condition.

To a landlord, though, the need for emotional support may seem like just a gambit to get around his no-pet clause. Professional associations fan the flames of landlord discontent by highlighting landlord liability and advising strategies that can undercut a tenant’s disability claims. Landlords’ supporters in the state legislature have introduced bills year-after-year to codify a more restrictive definition of “emotional support animal,” and to require a prescription from a California-licensed physician or mental health professional for a support animal. In the 2015-2016 it was AB2560 (since pulled by its author) and more recently AB1569 (which ran afoul of the state constitution). These laws will keep coming. The goal is to erect additional hurdles and make it more difficult to qualify a support animal for protection as a class when it comes to disability discrimination in housing.

How to Argue for a Reasonable Accommodation

Getting permission for an emotional support animal begins with the tenant meeting the definition of having a disability. That generally means a physical or mental impairment “that substantially limits one or more major life activities.” (Likewise simply having a record of such an impairment can suffice.) The tenant need not provide the landlord with a specific description of the disability in order to request an accommodation; often a letter from a doctor, psychological professional or even your therapist will suffice.

CERTAPET dog certificate screengrab
You need not turn to certificate mills! These certificates are not worth the paper on which they are printed.

The letter should explain how the landlord’s accommodation will mitigate the effects of the disability and/or enhance the tenant’s ability to enjoy her home. It should suggest the relationship between the disability and the need for an emotional support or companionship. The tenant need not disclose medical details about the disability or provide a medical history. Nor is proof of animal training or certification required.

If the disability is long-standing and has been recognized, be sure to include that in the communications, which should be documented (I always recommend all exchanges with the landlord or property manager be by email or text).

Explain why an accommodation for the the animal is important. If applying for an apartment be prepared with a description or introduction (like a pet resume) and references for the pet if you have them. It’s difficult to know whether the mention of the animal worked against the application so the best approach is to go in fully prepared to make the case.

DOGTOR certificate mill screengrab
Forget this one too. Put your effort into making a good case to the landlord.

The key is the good-faith argument for a reasonable accommodation. Most landlords will acknowledge that the law requires an exception to their no-pet policy and they don’t want to face a discrimination complaint (see an overview of the complaint process).

Make your case in good-faith. Silly animal vests, bogus online certificates, needless ‘registries,’ or implausible claims are not persuasive and will likely prompt a denial from the landlord. (Or a soft rejection at screening.) At that point the disabled tenan can only bring a private civil action to force the accommodation.

When Disputes Arise

The tenant challenging a landlord’s no-pet policy without the protection of anti-discrimination law must consider her legal vulnerability. It all comes down to the individual rental agreement: that establishes expectations for both tenant and landlord but is also an enforceable contract (even for a month-to-month tenancy). One sure way to run afoul of the landlord is to try and sneak in a pet if the lease prohibits one!

The rule of thumb for housing law generally, and for pet-keeping in particular, is that it is always better to talk-out a dispute rather than rely on the courts to adjudicate it. For a tenant bringing a private civil action to forestall eviction, the key consideration is that courts are overburdened and lease provisions hold much weight in the legal system. The law is often on the side of the landlord and often so too is the judge. Is it a risk worth taking?

Consider these circumstances which suggest how it can be difficult to keep a pet (again, not a service or support animal). From most promising to least:

  • If the landlord expressly allowed pets under the original lease or agreement then he will have a more difficult time modifying it later – especially if the tenant has kept her pet with his permission for an extended period.
  • If the lease didn’t include a no-pet provision (some older leases may not have) and the tenant has kept an animal for some time, the landlord may not prevail in imposing that condition now outside of some new circumstance.
  • If the lease includes a no-pet clause but the landlord has allowed a pet for some time under a verbal agreement, or perhaps the tenant struck a verbal agreement with the property manager, then the tenant may well prevail in a dispute should the landlord move to change the terms.
  • If the lease includes a no-pet clause but the landlord tacitly allowed a pet for some time but then moves to change those terms for a month-to-month tenant, the tenant’s position is not quite as strong.

In the last instances much will depends on whether the tenant can show that the landlord knew there was a pet on the premises. Has there been reference in any written communication to the pet? Was a manager (particularly a resident manager) aware of the animal? Was that documented in emails for example? Tenure is also important. How long has the tenant been renting from the landlord, and has an animal been resident in the home for a long period?

These circumstances become important in a legal dispute. So it is best to check the lease for specific provisions and clauses relevant to pets before you even argue your case with the landlord.

What about a support animal? If a tenant claims an animal is present for emotional support, and the landlord refuses to make a reasonable accommodation, then a civil action to compel the accommodation comes down to the plausibility of the tenant’s claim. At the same time, the landlord can argue that the accommodation would be an administrative or financial burden or present a disturbance to other tenants. That is not inconceivable; imagine a neighbor with a fear of dogs. (In such cases the landlord is obligated to first consider an alternate arrangement for the tenant.) Typically in court the landlord will have a difficult time establishing that an emotional support animal constitutes an undue burden and a cogent argument in support of the need for an accommodation may win the day.

An important caveat is that any dangerous animal, and one that creates a nuisance, enjoys no protection under the disability accommodations law under any circumstance. No landlord is obligated to house an animal that poses a threat to life or property. No tenant who fails to take any measure to ensure that the animal does not bother other tenants will survive a landlord’s challenge.

Hug It Out!

The best option for a tenant in a dispute with the landlord no matter what the tenant’s claim is to simply hug-it-out. Approach the discussion in good faith and think about it like a new agreement: would a pet charge or pet deposit make him feel better about the animal? If the tenant has too many pets, could she part with one of them? If the animal’s behavior is a concern, could the tenant take any step to rein it in, perhaps offering to take the animal for training? If pet behavior is at the center of a conflict with the neighbor, then address that first and then take it to the landlord (hopefully with the neighbor’s support).

The bottom line: unless a tenant is explicitly protected by the rental agreement terms, or has a service dog, she is in a subordinate position relative to the landlord when it comes to a dispute. Should a dispute with the landlord escalate, then it’s prudent to look for a new place to live. Because once the landlord serves a tenant with a 3-day notice to correct or quit, there will be little time to negotiate any compromise or find a place.

Shelters receive a steady stream of dogs who are reluctantly surrendered after a loss of housing. But for the efforts of pet rescue organizations like the local Birte Foundation, a tenant’s serious misstep may, in the worst case, result in a death sentence for the animal.

More Resources

Note: A tenant under a lease who keeps a pet with the permission of the landlord may choose to renew the lease but find the landlord wants to renegotiate its terms. He may ask for a higher rent or a larger pet deposit. He may even suggest he could disallow the pet unless the tenant pays more. Be aware that while a landlord can ask to change terms upon lease renewal, the tenant can lawfully decline and instead continue on month-to-month under the same terms. The landlord who has allowed a pet for a long period will find it difficult to prohibit the animal at that point. Know that if you come off of a lease you are are not required to renew simply to keep your animal.

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