A Companion Animal is not a 'Pet'

A prospective tenant indicates on his application that he has a companion animal. An accompanying letter from the applicant's physician states that the companionship of the applicant's cat is instrumental in keeping the prospective tenant from suffering severe and debilitating episodes of depression.

When the tenant is accepted, subject to the complex's standard pet charges, he complains of wrongful discrimination and says that he should not be assessed the extra charges. If the matter is adjudicated, will the tenant prevail? Bet on it.

On the federal level, the relevant law governing this sort of scenario would be the 1998 Fair Housing Act Amendments (FHHA) which expanded the Fair Housing Act to include handicapped persons. A handicap is there defined as "a physical or mental impairment which substantially limits one or more of such person's major life activities." In California we would look to the state's Fair Employment and Housing Act (FEHA), particularly at Government Code §12927(c). Other states have similar laws. The principles tend to be the same.

With respect to the scenario above, we note first why it is that there would be something wrong with the tenant being charged the otherwise perfectly legal fees for having a pet. That is because animals that are used to ameliorate disabilities (commonly referred to as "service animals" or "companion animals") are, under the law, not pets. Therefore, pet charges do not apply. Moreover, neither does a "no pets" policy.

At this point some might say, "Wait, I understand about service animals - seeing eye dogs - but companion animals?" The law does not distinguish between physical and mental disabilities. If you have a condition that substantially limits one or more of your major life activities, then you have a disability. And an animal that helps to overcome the effects of that disability is not required to have the specialized training that so-called "service animals" do.

There must, though, be a nexus between the disability and the functional value of the animal. A blind person won't, because of his blindness, get to have a cat; and someone who tends to depression may not get to have a seeing-eye trained German Shepherd.

The law requires that a landlord make a "reasonable accommodation" for a disabled person. A reasonable accommodation is where a home provider has a rule, policy, or procedure and permits a change in their rules, policies, or procedures to allow a person with a disability to more fully enjoy and use their premises. This, though, doesn't mean that the landlord has an obligation to do whatever is possible. A balancing of interests and benefits is expected.

Suppose, for example, that a landlord has a no-pets policy, and a tenant applicant has a small, quiet companion animal. At first glance, at least, it would appear that an exception to the policy could be made for the disabled person. But, suppose that a landlord has an insurance policy that excludes pit bulls from the premises. (Such exclusions are not uncommon.) If a tenant applicant had a pit bull for a companion animal, it might be considered unreasonable for the landlord to accept the application and lose the insurance.

Further, it is important to note that, although a landlord may be required to accept a companion animal as an exception to the landlord's rules (e.g. by not requiring a pet deposit), it could still be considered reasonable that other rules (such as no excessive barking) could still be enforced.

Recently, a representative of California's Department of Fair Employment and Housing spoke on these subjects to a group from the California Association of Realtors®. Perhaps the greatest point of contention had to do with the fact that there are no clear criteria governing what persons may be considered qualified to certify that a companion animal is necessary for the well-being of a tenant. As one participant asked: "Is a letter from someone with an MSW (Master of Social Work) sufficient? What about the tenant's yoga instructor?" There was not a definitive answer.

It is clear that special treatment may be called for when a tenant has, or claims, a companion animal. Unfortunately, not all the issues have yet been clarified.



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