Courts favor tenants on emotional support animals

Living with an emotional support animal, aka comfort animal, can soothe an owner's nerves, but can jangle the nerves of the owner's landlord and neighbors. The number and variety of emotional support animals seem to expand yearly. Also expanding is the amount of litigation involving these animals. For example, in Florida, a tenant is suing his landlord to keep an emotional support squirrel, and in Wisconsin last month, a zoning commission denied a resident's zoning variance request for comfort goats and geese. Comfort animals in South Dakota include miniature horses, snakes and chickens; in July, a new South Dakota law will allow landlords to evict tenants who fake a disability or provide false documentation of their need for an emotional support animal.

In published decisions, California district courts have routinely sided with tenants in litigation concerning comfort animals. In Castellano v. Access Premier Realty, Inc., 181 F.Supp.3d 798 (E.D. CA 2016), a tenant successfully sued her apartment manager for refusing to allow her to keep an emotional support cat. In Janush v. Charities Housing Development Corp., 169 F.Supp.2d 1133 (N.D. CA 2000), the court denied the defendant's motions for summary judgment and dismissal of a tenant's suit stemming from the defendant's refusal to allow the tenant to keep two comfort cats and two comfort birds. What this means for a landlord is that before denying any request for a comfort animal, the landlord should think long and hard.

Generally, it is difficult for landlords to deny tenants' requests for emotional support animals. The federal Fair Housing Act and the California Fair Employment and Housing Act provide expansive protections for tenants with disabilities who request reasonable accommodations for emotional support animals. These protections cover virtually all types of public and private housing, except housing in which only one roomer or boarder lives in a portion of an owner-occupied single-family household. These protections apply despite a landlord's general rule disallowing pets. See U.S. Department of Housing and Urban Development, FHEO-2013-01 (April 25, 2013).

Additionally, the American Disabilities Act may come into play. It applies to limited types of housing: government facilities and housing supported by government funds, as well as public accommodations such as leasing offices. The ADA protects tenants with "service animals," a term which includes only dogs and miniature horses and excludes emotional support animals. See FHEO-2013-1. Some places of public accommodation, such as rental offices, certain types of multifamily housing, and assisted living facilities, will be subject to both the service animal requirements of the ADA and the reasonable accommodation provisions of the FHA and/or the FEHA.

Landlords also must be mindful of their potentially competing duties to protect all their tenants and members of the public from dangerous animals and to comply with a tenant's right to a comfort animal. Although landlords are not obligated to inspect their premises for dangerous animal sightings, a duty of care arises when a landlord has actual knowledge of the animal and the right to remove it from the premises. Uccello v. Laudenslayer, 44 Cal. App. 3d 504 (1975). Furthermore, if a comfort animal escapes the landlord's property because of defects in that property, the landlord is liable for offsite injuries the animal causes. Donchin v. Guerrero, 34 Cal. App. 4th 1832 (1995).

So what can landlords do?

If a tenant's disability is not readily apparent or known, the landlord may request limited documentation of the disability and the disability-related need for the animal. If the disability is readily apparent or known but the disability-related need for the animal is not, the landlord may ask the tenant for limited documentation of the disability-related need for the animal. The documentation may be provided by a physician, psychiatrist, social worker, or other mental health professional. However, in practice any document will be considered to meet this requirement. The landlord may not ask for medical records or for detailed or extensive information about the tenant's impairments. See FHEO-2013-01. What this really means is that a landlord should think twice and be extremely careful in asking about documentation of any disability.

Although landlords may want to routinely deny requests for comfort animals, they may not unreasonably deny a request for a reasonable accommodation or unreasonably delay their response to the request. See FHEO-2013-01. Landlords may not apply breed, size, and weight limitations to a comfort animal and they may not require the animal to be trained or certified. Id. In Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Commission, 121 Cal. App. 4th 1578, 1596 (2004), the court stated that no special training is needed, because the innate qualities of a dog -- in particular a dog's friendliness and ability to interact with humans -- make it therapeutic as a comfort animal. (One wonders if this reasoning would hold true for a comfort squirrel or snake.) Landlords may not require tenants with comfort animals to pay fees or deposits or meet other terms and conditions applied to applicants or residents with pets. See FHEO-2013-01. However, they may require tenants to cover repair costs for damage the animal causes to the tenant's dwelling unit or the common areas, beyond reasonable wear and tear, if tenants are customarily charged for damages they cause to the premises. Id.

According to FHEO-2013-01, landlords may refuse requests for comfort animals in certain limited situations: when the request would impose an undue financial and administrative burden; when the request would fundamentally alter the nature of the housing provider's services; when the specific animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; and when the specific animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

In summary, when a tenant requests an emotional support animal, landlords must be careful to comply with the FHA, the FEHA and the ADA, while also ensuring the animal does not endanger the health or safety of other tenants and the public. It can be quite stressful for landlords to understand the requirements of the various statutes and their interactions with each other and follow their dictates while also juggling often contradictory needs and demands of many tenants and the general public. Landlords should seek the advice of counsel in making these difficult determinations. Of course, in dealing with these issues, a landlord might want to acquire a comfort animal of their own.