This Probably Never Happened to You, but… No. 186
by C. Finley Beven, JD, CPM, CCAM
The tenant from #3 called today and said that he needed to speak to me about something important. He was right.
We rented to him almost 10 years ago, and in all ways, he has been a model tenant. He was quiet, paid his rent on time, and kept his home immaculate.
He fit right in because the owner of her building was one of those who insisted that her property should be kept immaculate. The owner paid for weekly janitorial and landscape service, and (as a conscientious owner) visited her property frequently. As part of her mission to keep this property in perfect order, she insisted that there be NO PETS.
When the tenant called, he reminded me that his 8-year-old son is autistic. He also relayed that he had recently seen his son’s specialist, and the doctor had recommended that the boy have a dog as a companion. It was the doctor’s opinion that having a dog might help this boy (who is ordinarily very withdrawn), learn to interact better with people.
Who would not want that?
Well, as most of us know by now, both the federal and the state government DO want that. At the federal level, the Americans with Disabilities Act (ADA) requires landlords to make “reasonable accommodations” for persons with disabilities. There is no doubt that autism is a disability.
To somewhat complicate matters, the building owner at first resisted. She had never allowed pets, and she knows that some tenants try to “game” the rules with dubious claims of disability. Stated more bluntly, some tenants have been known to lie to get around NO PETS rules. The owner wondered if there wasn’t something we could do to preserve her NO PETS rule. I told her that, yes, the rule still stands, and that she should think of this as if it were a “blind person – guide dog” issue. It really is the same. The NO PETS rule continues to apply to all other tenants. Accommodating this child’s particular needs is both required by law and it is the right thing to do.
That was an easy example of “accommodation.” Perhaps too easy. Since the ADA was first passed, Fair Housing has gone much further. As most of you know, we must also allow “comfort animals”. Where the disability is not obvious, all a tenant has to do is to get a physician, psychiatrist, social worker, or other mental health professional to recommend that the patient (your tenant) needs a “comfort animal” for his or her well-being. You must “accommodate.”
But wait… it gets worse. For years, our office has had rules against “known dangerous breeds” in our few buildings that allowed pets. We never approved requests for breeds like Dobermans and Pit Bulls. Under current law, you cannot use these restrictions in determining what sort of dog the tenant can have. You can only base a refusal-to-accommodate based on a particular dog’s past aggressive behavior, not the reputation of the breed.
But wait… it gets even worse. The “comfort animal” could be anything … even a P-I-G. There was a recent news item about a passenger taking her “comfort pig” on a cross-country commercial airline flight. Can you imagine if you had reserved the seat next to her? The only criteria you can now use to limit what sort of animal is allowed are these two: would this particular animal pose a direct threat to the health or safety of others, or, would this particular animal be likely to cause substantial harm to the property of others. That’s it.
If the disability is observable, you cannot ask for proof-of-need. If the disability is not observable, you can ask for a letter from a reasonable source, such as a physician, psychiatrist, social worker, or other mental health professional. The letter should state that the tenant has a disability, but the letter need not state the nature of the disability. The letter should state the specific accommodation that the health-care provider is recommending relative to this tenant’s living situation.
If it helps, just remember that the “comfort animal” IS NOT A PET.
This is the law, and we are learning to live with it. Following the law has worked well for us.
This article is the 186th in a series based on the lessons we have learned the
hard way. The contents of these articles are merely opinions of the writer. They
are not intended as specific legal advice and should not be relied upon for that
purpose. Our practice is in constant refinement as we adjust the way we operate
to an ever- changing market. I appreciate your questions, comments,
suggestions, and solutions. Contact C. Finley Beven, CPM, CCAM, JD.
99 S. Lake Avenue, Pasadena. Fin.Beven@BevenandBrock.com