Farm animals like pigs and peacocks may not seem like a good fit for an airplane cabin, yet they would qualify as ‘emotional support’ animals in an apartment under federal rules. Tenants can use federal disability law to to keep the landlord from turning away a pet. Here we take a closer look at the tenant’s options when the landlord doesn’t welcome Fido — or that peacock!
Landlords Have Discretion
The most important thing to remember when it comes to animals in apartments is that the landlords enjoy latitude under the law to decide when to allow an animal on the property. Landlords can ban animals entirely or allow them selectively; they can impose a monthly charge for certain animals and even demand an additional deposit. (Read more in our primer on security deposits.)
While discrimination against animals is perfectly legal, discrimination against humans in need of an animal is decided not legal. State and federal laws protect against discrimination when an individual requires a service or support animal, for example; and some localities have also enacted additional protections. City of West Hollywood requires landlords to allow senior tenants to keep a pet. And that extends to a replacement animal when one has died. (In Beverly Hills we get no such consideration, though.)
Service Animals Get a Free Pass
Landlords must accommodate tenants with a disability and that extends to needs that require a service animal. These animals are not pets, though; they are trained to perform tasks. A dog may assist his sight- or hearing-impaired guardian. Others help with personal tasks like getting dressed. Indeed a landlord cannot discriminate against a tenant with a service animal as it is defined in federal and state law).
The landlord may not turn away a tenant with a trained and certified service animal, nor discriminate against the tenant in any way during screening. Nor can the landlord charge more for the animal or even ask for a pet deposit. Landlords can’t restrict on the basis of breed or weight either. The landlord that turns away a tenant with a service animal invites a discrimination lawsuit.
As a practical matter most landlords aren’t concerned about service animals because they are well-trained and relatively few in number. Of much greater concern are animals that tenants present as necessary but fall into a poorly-defined category like ‘therapy’ or ‘emotional support’ animal.
Emotional Support Animals Need a Reasonable Accommodation
Don’t assume that Fido will get a pass from the landlord because he sports a red vest! Landlords are hip to shenanigans like passing a family pet off as a service animal. They can spot a fake ‘service animal’ vest. Not only won’t fool him, it could attract a neighbor’s unwanted scrutiny, too, and misrepresenting the animal would leave the tenant no leg to stand on in defending against eviction: she herself made the misrepresentation!
But there is good reason to explore the emotional support animal avenue. From a tenant’s perspective, the emotional support animal may palliate anxiety, relieve stress, or alleviate fears concerning personal safety. These are arguably every bit as important to daily functioning as the service provided by a service animal. Accordingly, federal law recognizes emotional support animals and allows them (including pigs and peacocks!) to fly in an airplane cabin. (Incidentally, the necessary documentation for flying is usually just a form letter for which a doctor may ask fifty bucks.)
Housing is more of a challenge, though, because rental housing is largely a private good and there is no overarching agency (like FAA) to police landlords. Practically speaking, animals do impinge on neighbors. That’s not to say there are not specific protections for tenants with emotional support animals: we get some cover under the Fair Housing Act amendments and the California law on disabilities and accommodations.
Important: these laws don’t require a landlord to accept an animal but rather require only a ‘reasonable accommodation’ if it will not put an ‘undue burden’ on the landlord.
Landlords Fight Back
To a landlord, a tenant’s need for emotional support may seem like nothing more than a gambit to get around the landlord’s no-pet lease clause. Professional property owners associations like AAGLA fan the flames by highlighting landlord liability and advising strategies that can undercut a tenant’s disability claims.
Indeed landlords year-after-year have introduced bills to impose additional restrictions on emotional support animals, including an effort to change the definition. They want higher hurdles on reasonable accommodation requests (such as requiring a prescription from a California-licensed physician or mental health professional). Laws like AB2560 in the 2015-16 session (it was pulled before a vote) and more recently AB1569 (ultimately deemed to run afoul of the state constitution) will come back because the landlords want to make it more difficult to qualify an animal for ’emotional support.’
When Disputes Arise
The rule of thumb when it comes to housing is that it is better to talk-out a dispute rather than rely on the courts to adjudicate it. Garden variety disputes over a pet can be defused through good-faith appeals to the landlord. Would a pet charge or pet deposit make the landlord feel better? If the tenant has one too many pets, what if she parts with the gerbil? (Just joking.) If the animal’s behavior is the concern, perhaps the tenant could undertake some training? If conflict with a neighbor is the issue, ameliorate it with the neighbor first then take that to the landlord.
But if a reasonable accommodation looks like the only avenue, at least be prepared to have the conversation: refer to the lease for the specific clause banning the animal; obtain the necessary emotional support paperwork as soon as possible; make a cogent claim based on the paperwork. The stronger the claim, the more difficult it will be for the landlord to call the animal an undue burden on him.
The bottom line: unless a tenant has a certified service dog, she will be in a subordinate position relative to the landlord if a dispute arises. The city’s mediation program is one resort. Call the rent stabilization office at (310) 285-1031 and request it. And document any communication with the landlord!
One last caveat: an animal that creates a nuisance enjoys no protection. No landlord is obligated to house an animal that poses a threat. It may be time to look for a new place to live.
- Nolo post on emotional support animals in California
- Every Dog’s Legal Guide from Nolo Press [out of print]
- Right to Emotional Support Animals 2017 (via Bazelon Center)
- File a state housing discrimination complaint
- Fair Housing Handbook 2012 – Regional Human Rights and Fair Housing Commission
- Service Animals: Revised ADA Guidelines