Service/Companion Animals and Rental Properties: Posted by your broker

Service/Companion Animals and Rental Properties

 AUGUST 2014

TO ALL OF ASSOCIATES:

This is a full reminder to all of our associates:

It is very important that everyone FULLY DOCUMENT calls and conversations, and keeps that documentation in our records, so we can prove that we are absolutely in compliance.

REMINDER: We do not allow our agents to “manage” rental properties.  This information does apply as well, however, if any agent is helping a client find a tenant for a onetime fee, or is helping them in anyway to get their property rented. 

Reminder: Individuals with disabilities, including those who depend on service or emotional support (companion) animals, are protected by federal and state laws. 

A formal complaint was recently filed with the U.S. Department of Housing and Urban Development against us alleging discrimination against rental applicants who have service or companion animals.  These allegations, which Keller Williams denies, are based on alleged audits performed by a disability rights advocacy group, and are not actual rental applicants.  Nonetheless, we wanted to take this opportunity to remind you all of the law which applies to applicants who ask for an accommodation permitting them to have a service or companion pet. 

 

  1. Federal and California Law

Under federal law, service animals are covered by the Rehabilitation Act, the Americans with Disabilities Act (ADA), the Fair Housing Amendments Act (FHAA),[1] and the Air Carriers Access Act (ACAA).  Emotional support animals are covered by the FHAA and the ACAA.  In California, the California Fair Employment and Housing Act (FEHA)[2] and Unruh Act[3] offer equal or greater protection for persons with service or emotional support animals. 

The Fair Housing Amendments Act is applicable to individuals, corporations, associations, and others involved with the provision of housing and residential lending.[4]  This includes any rental properties managed by Keller Williams.

Under these laws, landlords and homeowners’ associations must make reasonable accommodations for people with disabilities.[5]  This includes individuals without disabilities who live or are associated with people with disabilities.[6]  A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, or practice in order to allow a person with disability to have equal opportunity to use and enjoy a dwelling.[7]  This generally includes waiving the prohibition against no-pet policies and allowing service animals and emotional support animals to reside on the property.[8]

 

  1. What is the difference between a Service and an Emotional Support Animal?

A service animal is any guide dog, signal dog, or horse individually trained to provide assistance to an individual with a disability.[9]  An emotional support animal provides comfort to a person with a psychiatric disability, but is not trained to perform specific tasks to assist them.[10]  Emotional support animals are not limited to dogs or horses.

 

  1. Even though the housing complex has a “no-pets” policy, can a resident have a service or emotional animal?

Yes.  We are required by law to make reasonable accommodations for people with disabilities.[11]  This includes making exceptions to the “no-pets” policy and allowing service and emotional support animals.[12]    

We are not required to make reasonable accommodations for any rental applicants with a disability who happen to have a pet.  We are only required to make reasonable accommodations for individuals who are disabled and use the services of a service or emotional support animal.[13]

 

  1. What am I allowed to ask an applicant who requests accommodation to allow a service or emotional support animal?

You may only ask an applicant for the following regarding the service or emotional support animal:

      1, Verification that the applicant/resident has a disability and a disability-related need for the                requested accommodation;

  1. Documentation of the disability and need for the animal from an appropriate third party (i.e., medical provider, mental health provider, other professional).[14]

You may also ask for information necessary to evaluate the disability-related need for the requested accommodation, such as:

  • Ability to meet requirements of tenancy/ownership;
  • Whether applicant is qualified for a dwelling available only to persons with handicaps;
  • Whether an applicant is qualified for priority available to persons with handicaps;
  • Whether the applicant is a current illegal abuser or addict of a controlled substance;
  • Whether applicant has been convicted of the illegal manufacture/distribution of a controlled substance.[15]
  1. What am I NOT allowed to ask from an applicant?

You cannot ask an applicant for the following information:

  • If he or she has a disability when the applicant does not raise the issue first;
  • Nature or extent/severity of the disability.[16]

This also means that you cannot ask an applicant for his or her medical records. 

Note: You cannot require documentation if the disability or need is relatively apparent, obvious, or already known to the provider.  For example, a blind tenant should not be required to provide documentation of his or her disability and need for a guide dog.  In fact, if an applicant’s disability is obvious, and if the need for the requested accommodation is obvious, then you cannot request any additional information.[17]

  1. Can I charge an extra fee or require additional deposit from applicants with disabilities?

No.  You cannot charge a fee or require additional security deposit as a condition of allowing the service or emotional support animal.[18]  However, you can charge the applicant/tenant at the end of his or her tenancy for any damage caused by the service or emotional support animal (beyond that of normal wear and tear).[19] 

  1. What are appropriate methods of documentation/verification of disability?

Verification of disability may be obtained through the following methods:

  • A third party verification form that we send to the applicant or resident’s physician, psychologist, clinical social worker, or Veteran’s Administration.  This form must be signed by the applicant/resident authorizing the release of such information to the owner;
  • Receipt of social security disability payments.
  1. Examples of When Owners Must Make Reasonable Accommodations
  • An owner that does not allow residents to have animals must modify the property’s policies and allow a tenant with a disability to have an assistance animal if the animal is needed as a reasonable accommodation.
  • Because of a vision disability, a tenant requests permission to have a guide dog reside with her in her apartment. The housing provider has a “no-pets” policy. This is a request for a reasonable accommodation, and the housing provider must grant the accommodation.
  • An applicant responds to a rental listing (MLS, Craigslist or elsewhere) which state “no pets” . The applicant asks if they can have their Chihuahua companion pet which eases the applicant’s anxiety.  Leasing agent can only respond by asking for the applicant to provide a doctor’s note (or request for accommodation).  If the doctor’s note is provided, the leasing agent must not refuse to rent because of the “no pets” policy, nor impose any additional restrictions on the renter/applicant such as increased security deposits.
  1. Additional Information

Additional information can be found online:

 

[1] The FHAA amended Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) (42 U.S.C. §§ 3601 – 3619), which prohibits discrimination on the sale, rental, and financings of dwellings based on race, color, religion, sex, or national origin.  The FHAA, which became effective on March 12, 1989, expanded coverage of the Fair Housing Act to, among other things, prohibit discrimination based on disability or familial status.

[2] Cal. Gov. Code § 12900 et seq.

[3] Cal. Civ. Code § 51 et seq.

[4] 24 C.F.R. 100.5.

[5] Cal. Civ. Code § 54.1.

[6] 42 U.S.C. §§ 3604(f)(1)(B), 3604(f)(1)(C), 3604(f)(2)(B), 3604(f)(2)(C).

[7] 42 U.S.C. § 3604(f)(3)(B); U.S. Dept. of Justice Civil Rights Division & U.S. Dept. of Housing and Urban Development Office of Fair Housing and Equal Opportunity, “Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act” (“Joint Statement”), at p. 6, May 17, 2004, http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf (last accessed on June 18, 2014).

[8] See Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578. 

[9] 28 C.F.R. §§ 36.104, 35.104, 36.302(c)(9)(i), 35.136(i); California Disabled Persons Act, Cal. Civ. Code § 54.1 (b)(6)(C)(iii).

[10] Auburn Woods I Homeowners Assn., 121 Cal.App.4th at 1595-96.

[11] 24 C.F.R. § 100.204.

[12] Janush v. Charities Housing Development Corp. (ND Cal 2000) 169 F Supp 2d 1133, 1136.

[13] Cal. Civ. Code §§ 54.1(b)(5), 54.1(b)(6)(A).

[14] 24 C.F.R. § 100.202(c); Joint Statement, supra, at p. 11-12.

[15] 24 C.F.R. § 100.202(c).

[16] Cal. Civ. Code § 54.2; Joint Statement, supra, at p. 14.

[17] Joint Statement, supra, at p. 12-13.

[18] Joint Statement, supra, at p. 9.

[19] Cal. Civ. Code § 54.2.

[20] Disability Rights California, “Psychiatric Service and Emotional Support Animals,” June 2014, Pub. # 5483.01, http://www.disabilityrightsca.org/pubs/548301.pdf (last accessed on June 18, 2014).

[21] U.S. Dept. of Justice Civil Rights Division & U.S. Dept. of Housing and Urban Development Office of Fair Housing and Equal Opportunity, “Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act” (“Joint Statement”), at p. 6, May 17, 2004, http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf (last accessed on June 18, 2014).

This email was sent by Beverly Steiner at 760 Camino Ramon, Danville, Ca, 94526, United States.

in Compliance, Leases, Office Policies