White Paper on Fair Housing- Disability Discrimination Issues and How to Handle the Needs of a Disabled Tenant who Requests a Service Pet or Comfort Pet as a Reasonable Accommodation.

How to prevent a “dog” of a case becoming a state or federal disability legal case against the landlord or property management company.

Let’s start the discussion and analysis with a hypothetical fact pattern:

Tenant Victor wants to have a service dog in his apartment. You are the resident manager of a mid sized apartment complex of 50 units. Your property management company has a “no pet policy” in the apartment complex, with the exception of non-biting gold fish. Victor appears to be the model of good health- he works out at the apartment complex fitness center every day. You get a letter that Victor claims to have a disability that requires the need of a service pet. Victor claims that the nature of disability is confidential. In fact, he suffers from a psychological and emotional condition that has been diagnosed as “post Donald Trump Election stress disorder.” He has been diagnosed by a psychiatrist with a mental illness that includes depression and stress over the election result, and suffers depression when he watches CNN, FOX, and CNBC. The psychiatrist has diagnosed his condition as a disability that may last 4 years or 8 years depending on if Donald Trump gets reelected. He suffered a recent strange unexpected relapse when he learned of President Obama’s speech fee which required Victor to have medication. His neighbors, mostly registered republicans, are not fond of Victor. He is hypersensitive to political news events and outcomes for both parties. When he drinks tea from Starbucks he gets nervous because it reminds him of the Tea Party platform.

After speaking to Victor on the phone, he tells you that he desires to have a comfort animal in his apartment to calm his nerves, and the proposed pet is named “Vera.” He sent you an email with a picture of Vera. His proposed comfort animal, Vera, is a small German Sheppard with no history of dog biting and no history of loud barking. He purchased the animal from a pet store in Berlin called Sheppardco. The doggy was shipped in a crate from overseas to Victor’s doorstep. Victor has taken the dog to obedient school and has made an effort to get the dog certified as a service animal to help him calm his frazzled nerves.

As a property manager, what issues should you be aware of ??

Victor may have real disability if it can be shown with basic minimal documentation. If the disability can be documented with a doctor’s note, you will have to allow him to have a pet like Vera even though it is a “no pet” apartment complex. If you take a hard line and discriminate against Victor because of his alleged disability, you could be sued by Victor, or the state or federal government for disability discrimination.

What housing laws apply to this situation – both state and federal laws and regulations ??

California State Housing Laws that Protect Disabled Persons

Individuals with physical and mental disabilities have the right under state law to rent, lease, or buy housing accommodations free from discrimination due to a disability. (See Chapter 1 for definitions of disability; Cal. Civ. Code, ” 51, 54, subd.(b), and 54.1; Cal. Gov. Code, ” 12926, subds. (i) and (k), 12955 and 12955.3.)

Cal. Civil Code Section 54.1 states in pertinent part,

“(6) (A) It shall be deemed a denial of equal access to housing accommodations within the meaning of this subdivision for a person, firm, or corporation to refuse to lease or rent housing accommodations to an individual who is blind or visually impaired on the basis that the individual uses the services of a guide dog, an individual who is deaf or hard of hearing on the basis that the individual uses the services of a signal dog, or to an individual with any other disability on the basis that the individual uses the services of a service dog, or to refuse to permit such an individual who is blind or visually impaired to keep a guide dog, an individual who is deaf or hard of hearing to keep a signal dog, or an individual with any other disability to keep a service dog on the premises.”

(C) (i) As used in this subdivision, “guide dog” means a guide dog that was trained by a person licensed under Chapter 9.5 (commencing with Section 7200) of Division 3 of the Business and Professions Code or as defined in the regulations implementing Title III of the Americans with Disabilities Act of 1990 (Public Law 101-336).

(ii) As used in this subdivision, “signal dog” means a dog trained to alert an individual who is deaf or hard of hearing to intruders or sounds.

(iii) As used in this subdivision, “service dog” means a dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.

Federal Housing Laws that Protect Disabled Persons

Federal disability laws and regulations also apply to this situation.

The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of race or color, religion, sex, national origin, familial status, or disability.

The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions. The Act defines persons with a disability to mean those individuals with mental or physical impairments that substantially limit one or more major life activities. The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. The term “major life activity” may include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, or working. The Fair Housing Act also protects persons who have a record of such an impairment, or are regarded as having such an impairment.

Current users of illegal controlled substances, persons convicted for illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders are not considered “disabled” under the Fair Housing Act, by virtue of that status. The Fair Housing Act affords no protections to individuals with or without disabilities who present a direct threat to the persons or property of others. Determining whether someone poses such a direct threat must be made on an individualized basis, however, and cannot be based on general assumptions or speculation about the nature of a disability.

42 U.S.C. Section 3604(f) states in pertinent part that “as made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful—

(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—

(A) that buyer or renter,

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

It shall be unlawful to

(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—

(A) that person; or

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that person.

(3) For purposes of this subsection, discrimination includes—

(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

Note that the language of the federal statute uses the term “handicap,” Pursuant to 42 U.S. Code Section 3602 (h)

(h) “Handicap” means, with respect to a person—

(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities,

(2) a record of having such an impairment, or

(3) being regarded as having such an impairment . . . “

What is a “reasonable accommodation” for purposes of the Act that a landlord has to provide to a disabled person ?

A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. The Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.

To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.

Are there any instances when a provider can deny a request for a reasonable accommodation without violating the Act ?

Yes. A housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. In addition, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations. The term is “reasonable accommodation,” not “every accommodation.”

The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden. If an alternative accommodation would effectively meet the requester’s disability-related needs and is reasonable, the provider must grant it.

An interactive process in which the housing provider and the requester discuss the requester’s disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider.

Can you request information and records about Victor’s claimed disability ?

If a disability is not obvious, what kinds of information may a housing provider request from the person with a disability in support of a requested accommodation ?

This is a sensitive topic to be dealt with kit gloves. A housing provider may not ordinarily inquire as to the nature and severity of an individual’s disability. However, in response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. Depending on the individual’s circumstances, information verifying that the person meets the Act’s definition of disability can usually be provided by the individual himself or herself (e.g., proof that an individual under 65 years of age receives Supplemental Security Income or Social Security Disability Insurance benefits or a credible statement by the individual).

A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability. In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary for this inquiry.

Once a housing provider has established that a person meets the Act’s definition of disability, the provider’s request for documentation should seek only the information that is necessary to evaluate if the reasonable accommodation is needed because of a disability. Such information must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (e.g., a court-issued subpoena requiring disclosure or a lawsuit is filed that puts the nature of the disability at issue.). So, as a property management company and landlord, specific disability information should be kept confidential from other residents and should be kept “under seal,” or labeled “confidential” so to speak, in the property management office. Use good professional judgment in keeping the file sealed and confidential.

In Victor’s case, it is important to obtain some basic information about the specific nature of the disability – this may be in the form of a doctor’s letter. If you don’t know anything or understand about the nature of the disability then you cannot assist and accommodate the tenant to be in compliance with the law. Some disabilities may be obvious- others are not. A mental, psychological, or emotional disability condition may be the hardest to notice or fully understand without a medical opinion. The tenant may not want to discuss the condition unless he or she must do so. You should maintain limited confidentiality of the medical information if the tenants requests that you do so. Also, if the tenant does not provide any documentation, the tenant may be claiming a disability fraudulently, just to get around a “no pet policy.” The claim of a bogus disability is more common than you think, as some tenants may take liberties to get special privileges at the apartment complex.

Can you request information about Vera’s demeanor as a service pet ? ?

It is a smart idea to do some investigation and ask the tenant to verify in writing whether the dog has any history of biting, snapping, or loud barking as to cause a nuisance to other tenants. Has the dog itself been a victim of abuse ? Has the pet had multiple owners or was ever abandoned ? Ask the tenant if there were any issues with the dog at their prior residence, which may have been the city dog pound. Has the dog been formally trained ? If a dog is properly trained and certified as a service dog, usually the dog is well behaved. Don’t judge the dog based on the fact it is cute or adorable. But you don’t get to know the dog’s personality until the dog stays at the property. You will learn a great deal about the personality of the dog after 30 days. You should see and meet the pet to get an idea of the pet’s personality.

If a doctor has diagnosed Victor with a mental disability or handicap, can you enforce the no pet policy to stop Victor from housing Vera the doggy as a service animal or comfort animal ?

No, you are required by law to allow the pet if the pet is not a knowingly dangerous or a nuisance to other residents. Monitor the situation- you won’t know the pet’s personality until the pet has been tested in its new environment.

If you can verify Victor’s disability condition with some reasonable certainty, and don’t allow Victor to house Vera as a service dog, what can Victor do ?

Victor’s rights and remedies under California state law include, a person discriminated against on the grounds of disability pursuant to Cal Civil Code section 54.1 can ask the local district attorney, city attorney, the Department of Rehabilitation acting through the Attorney General, or the Attorney General to bring an action to enjoin the violation, civil penalties, damages, or to seek other remedies, or he or she may bring his own private legal action. (Cal. Civ. Code 55 and 55.1.). The prevailing party in the action shall be entitled to recover reasonable attorney’s fees.

An aggrieved person may commence a civil action in an appropriate court not later than two years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing practice or breach. The computation of the two-year period shall not include any time during which an administrative proceeding under this part was pending with respect to a complaint under this part based upon the discriminatory housing practice or breach. (Cal. Gov. Code, 12980 and 12989.1.)

Under the dual federal law track, Victor may either file a lawsuit or may file a complaint with U.S. Department of Housing and Urban Develeopment (HUD), not later than one year after the discriminatory act has occurred and HUD may pursue legal remedies on his behalf. (42 U.S.C. Section 3610 and 3612.) Vera may also pursue an action through the Civil Rights division of the U.S. Department of Justice as a referral from HUD to file a complaint on behalf of the United States in federal court.

42 U.S. Code 3612 (p) provides attorney’s fees and costs for the prevailing party for a discrimination complaint filed with HUD, an administrative law judge, or federal court.

This section provides, “ In any administrative proceeding brought under this section, or any court proceeding arising therefrom, or any civil action under this section, the administrative law judge or the court, as the case may be, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the extent provided by section 504 of title 5 or by section 2412 of title 28.”

Just a word of comfort – even if you get sued by the government for a disability discrimination claim, the claim can be settled if the government is reasonable. Most governmental offices want to settle cases with written settlement agreements, and not a lot of protracted litigation. The government does not have unlimited resources, and may want your company to implement a better management policy with respect to tenants who claim disabilities. However keep in mind, that plaintiffs can seek damages, penalties, and attorney’s fees and costs.

Should you charge Victor a pet fee for hosting Vera ?

No. Landlords may not require applicants or residents to pay a pet deposit for a service dog, psychiatric service dog, or support animal, even if they do so for other applicants or residents.

This is based on the policy statement contained in the Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations under the Fair Housing Act.

This is a strange rule because a service or comfort animal can destroy an apartment as much as a regular pet that is housed by a non-disabled tenant- shouldn’t the landlord be protected if the tenant moves out and the apartment has major damage from the pet ? The law and authorities tend to view the pet fee as a discriminatory penalty.

If your real estate company approves Vera as a comfort or support animal, and Vera starts snapping or biting other residents in the complex or barking loud in the complex, what can you do ?

Although you are making every effort to reasonably accommodate Victor with his pet request, Victor is not the only person that you should be concerned with at the apartment complex. Other residents have rights of quiet enjoyment under their rental agreements. If the Veras of the world are being a “nuisance,” and posing a risk of harm to others, you should speak to the tenant about the issue, and you should follow up and send the tenant a letter requesting to get control of the dog. The dog may need additional training or additional supervision.

Have positive and friendly communication channels with the tenant that is not adversarial. If that does not work, and you have to put the hammer down, you can also send the tenant a three day notice to perform covenant or quit to request that the tenant control the animal. If the tenant does not get control of the dog, or the tenant is snapping or biting, then you can call animal control authorities to file a complaint.

How can you prepare and train your employees and staff for these kinds of situations ?

The fact scenario presented about Victor and Vera is more common than you think. Now you have a flavor for the issues and state and federal disability laws. More and more tenants are trying to use the disability laws to obtain special accommodations. Some requests are legitimate and lawful, and others are manipulative and fraudulent. It is important to educate yourself on the issues so you are ready for this type of situation, and have a plan for dealing with it.

If your real estate company or property management company in Southern California needs counsel and additional in office training and administrative and legal support on the laws and regulations of disability and fair housing, please contact LA Real Estate Law Group to schedule a training session in your office.

The author of this article, Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy matters. The contact number is (818) 383-5759, and email is natebernstein44@gmail.com.   Nate Bernstein is a 22 year veteran Los Angeles real estate and business attorney and trial lawyer.   Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights and debtor’s bankruptcy options.    He previously served as Vice President and In House trial counsel at Fidelity Title Insurance Company, a Fortune 500 company, and in house counsel at Denley Investment Management Company.      Nate Bernstein created http://www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation.     Nate Bernstein is a local expert on real estate law and economic trends in the real estate and leasing market, business law, and bankruptcy law.    Nate has personally litigated more than 40 major real estate trials, and has settled more than 200 complex real estate and business cases.

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