In most cities, tenants don’t have to choose between finding a nice place to live and having a pet. Here in the Bay Area though, where the housing market is so tight, it’s a whole different story. In this article we explain the different local rules surrounding pets, support animals, and service animals for tenants.
“No Pets” Lease Provisions
Landlords have a right to prohibit tenants from having pets in their apartments. Because there is such high demand for apartments in the Bay Area, and no shortage of tenants vying for open apartments, landlords are in the driver’s seat when it comes to dictating terms. As a result, in San Francisco the vast majority of rental units do not allow pets.
If your lease does not allow pets and you get one anyway, you put your tenancy at risk. Breach of a material lease term is one of the grounds for eviction in both San Francisco and Oakland.
“Service” vs. “Support” Animals
Though landlords may prohibit pets, tenants with a qualifying disability may be entitled to a support or service animal.
It is a common misconception that “support animal” and “service animal” are interchangeable terms. In fact, these terms have very different meanings under the law. Both may provide certain tenants with a way to have an animal regardless of what a lease says about pets.
Who qualifies for a support or service animal? To qualify for a support or service animal, a tenant must meet the definition of a person with a disability. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities.
Under California law, the definition of disability is broader, and includes a mental or physical impairment, disorder, or condition that limits a major life activity. The definition of disability also includes a perception that the person has a disability, or that the person is associated with a person who has, or is perceived to have, a disability. “Major life activities” is a broad category. Examples of major life activities include, but are not limited to, physical, mental, and social activities and working. Whether a disability or condition “limits” a major life activity must be determined without regard to any mitigating measures, such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
A support animal is an animal of any species that helps people with psychological disabilities. Animals have been shown to help reduce symptoms of depression, anxiety, and stress. A support animal is not trained – they simply provide support by being there.
While support animals (also known as emotional support animals) need no special training, a person must still qualify as “disabled” to have a support animal.
By contrast, a “service animal” is a dog (or miniature horse) that is trained to perform tasks or do work for the benefit of a disabled person. This is a legal term that comes from Title III of the Americans with Disabilities Act (ADA).
The most common example of a service animal is a seeing eye dog. Other examples include dogs trained to alert people who are deaf, pull a wheelchair, or help people with seizures.
While most people might assume service animal are only for people with a physical disability, this is not actually the case. Rather, people with psychiatric conditions can also qualify.
Getting Landlord Approval
Tenants with a qualifying disability have the right to a service or support animal in their home as a matter of law (See Unruh Civil Rights Act and Disabled Persons Act (CDPA), as well as under the ADA. Animals in these instances are considered more like assistive aids such as wheelchairs than like pets.
Generally landlords are required to make an exception to a no pets policy for support and service animals. However, a tenant cannot just move the animal in right away.
First, the tenant must follow the proper steps to get approval for the animal. First, a tenant must get a letter or prescription from a qualified professional (e.g. therapist or physician). The letter must show that the tenant qualifies as disabled and that the animal is part of their treatment for that disability. The tenant then must make a request to their landlord for a “reasonable accommodation” in the form of the animal.
What is a Reasonable Accommodation?
A landlord cannot refuse a reasonable accommodation request. The key in these situations is the word “reasonable.”
A request may be unreasonable if it creates an undue financial burden on the landlord or fundamentally alters the nature of the housing. The animal also cannot pose a threat to others. Assuming that the request is not unreasonable, a landlord cannot refuse an accommodation request.
Can My Landlord Ask About My Disability?
In evaluating a reasonable accommodation request, a landlord can only ask the following questions about the animal: 1) whether the animal is required because of the resident’s disability, and 2) what work or task the animal is trained to provide.
A landlord can request documentation showing that a tenant has a disability, and that they have a disability-related need for the animal. They can’t ask for specific information about the nature of a tenant’s disability.
Can My Landlord Refuse My Request?
If a landlord refuses a valid request for a reasonable accommodation, a tenant may have grounds for a disability discrimination lawsuit.
If a tenant ignores a landlord’s refusal and moves the animal in without permission, some landlords will bring an eviction lawsuit for breach of lease. In these situations, the tenant may end up defending themselves in an eviction lawsuit, and should be prepared to prove that they have a legitimate disability in court.