Can I Ask Potential Tenants if They Have an Emotional Support Animal During the Screening Process?
July 31st, 2020
What is an Emotional Support Animal?
Emotional support animals (sometimes called simply “support animals” or “companion animals”) are animals that support disabled people. Unlike service animals, like seeing eye dogs, they do not require specialized training and are not limited by species or breed. They can assist with a wide range of physical and psychological ailments and their very presence is the assistance they provide. As one California court noted, the “innate qualities of a dog, in particular a dog’s friendliness and ability to interact with humans…[makes] it therapeutic.” A tenant’s right to have an emotional support animal is protected under a host of federal and state laws including the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), the Unruh Civil Rights Act, and the California Fair Employment and Housing Act (FEHA). Because of the broad definition of “disabled,” Landlords must be careful when confronted with a tenant or applicant who requests an emotional support animal.
What is a Reasonable Accommodation Request?
When a tenant or applicant requests an emotional support animal, they are actually requesting a reasonable accommodation of a no-pets or no-animals policy. A tenant, prospective tenant, or even a family member of a tenant or prospective tenant may request a reasonable accommodation of a landlord’s rules, regulations, or policies at any time, including during the application process. Disability is defined very broadly as any physical or mental impairment that substantially limits one or more major life activities. A request can only be denied if the request was not made by or on behalf of a person with a disability; if there is no disability-related need for the accommodation; or if the accommodation requested is not reasonable. Generally, refusal to grant a reasonable accommodation request constitutes disability discrimination under both California and federal law. Particularly, refusal to allow a companion animal (especially a dog or cat) has been repeatedly held by courts and administrative agencies to constitute disability discrimination.
What Should You Do?
Unless and until a prospective tenant raises the issue, you should not ask whether she has – or needs – an emotional support animal. Regardless of your actual reasoning, if you subsequently deny her application, it creates fodder for a myriad of tenant legal claims, such as a disability discrimination lawsuit or administrative complaint. Because a landlord may not impose any costs or charges as a result of a requested accommodation, a better practice is to eliminate any “no pets” policies and charge a pet deposit in order to deter tenants looking to “game” the system but still adequately protect your property. Contact an attorney if you receive a request for reasonable accommodation.
Disclaimer: The information on this website is not intended to constitute legal advice and should not be relied upon. No attorney-client relationship is established, and readers should consult with counsel regarding any information contained herein.
Categories: Landlord/Tenant Issues