Failure to accommodate a person with a disability—from emotional support animals, to growing marijuana, and everything in between—violates fair housing and anti-discrimination laws.
Have you recently seen dogs or other animals accompanying people in restaurants and airplanes? Do you wonder why you see animals in more places these days, where they would have been prohibited in the past? The reason is because strict laws prohibit discrimination against persons with disabilities, and animal accompaniment can be therapeutic for a disabled person. Refusing to allow an animal to accompany a disabled person in many places may be discriminatory. The laws regulating the real estate and housing industries are no different. They too prohibit discrimination against disabled persons and require property owners to make accommodations.
Fair Housing Laws
Federal, state, and local fair housing laws protect persons with disabilities. These laws apply to all aspects of real estate and housing, including buying and selling, mortgage lending, home owner associations, and advertising and rental housing.
In California, it is unlawful for a landlord, managing agent, real estate broker, or salesperson to discriminate against a person or harass a person with a disability. A property owner cannot make oral or written statements, or use notices or advertisements that indicate any preference, limitation, or discrimination based on a disability.
Fair housing laws make it unlawful for any person to refuse to make reasonable accommodations in 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. What does this really mean? It means that owners and landlords will have to make exceptions to their standard rental practices and policies to accommodate tenants with disabilities so long as the accommodation does not create an undue financial and administrative burden. In other words, a landlord must be flexible with rules and policies and even permit certain things that might otherwise be prohibited when those things are reasonably needed to accommodate a disability. And if there is a cost involved in accommodating the disabled tenant, then the landlord must bear that cost so long as it does not create an undue financial burden on the landlord.
The obligation to accommodate is not limited to just the time during the tenancy. A landlord’s obligation to accommodate begins even before the tenancy commences—during the application process. A landlord cannot simply reject or refuse to reasonably accommodate an applicant because of the applicant’s disability or because of the accommodation request. Doing so would violate fair housing laws even though there is not even a formal landlord/tenant relationship yet.
The accommodation obligation even extends beyond the termination of the tenancy. For instance, if a tenancy has been terminated but possession has not yet been restored to the landlord by the sheriff, then a landlord would still need to consider a disabled tenant’s accommodation request. So the reasonable accommodation obligation applies pre-tenancy as well as the entire time the disabled tenant occupies the rental unit.
Many people equate a disabled person with someone who is wheelchair bound or can’t easily navigate stairs. But disability protections don’t just apply to persons who are visibly physically impaired. To the contrary, the definition of disability is very broad and includes countless impairments, many of which are not apparent to others.
Under federal law, a disability is a physical or mental impairment that substantially limits one or more major life activities. The definition under California fair housing laws is similar except that the word “substantially” is removed from the definition. The disability need not be substantially limiting—just limiting. So, if a physical or mental impairment simply limits the performance of a major life activity, then it is likely a disability within the meaning of California fair housing laws.
Major life activities can be just about anything. For instance, they may include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. If a physical or mental impairment limits in any way a tenant’s ability to do or perform any of these things, or any other major life activity, then the person is likely disabled under California law, and a landlord would need to reasonably accommodate that tenant if requested.
Tenant Request for Accommodation
To trigger a duty to accommodate, a tenant must first request an accommodation for his or her disability. But this doesn’t need to come in the form of a direct request. Nor is the tenant required to even utter the words “reasonable accommodation.” Instead, it becomes a request as soon as the tenant makes it clear that he or she needs an exception to a rule or policy. An example of such a scenario might be a prospective tenant applicant who informs the landlord that he or she has a walking impairment and then inquires whether a ground floor unit is available – the building has no elevator. The applicant has not specifically mentioned the words “reasonable accommodation.” However, it should be clear to the landlord that this is a disability related accommodation request and it should be treated as such.
In response to a tenant request for a reasonable accommodation, a landlord may request verification that the tenant is disabled. Toward this end, the tenant him or herself can verify the disability. A medical professional or peer support group or non-medical service agency, or even a reliable third party may also verify the disability. It is not uncommon for tenants to provide a letter from a doctor to verify a disability.
Notwithstanding the above, if a tenant’s disability is obvious or readily apparent, then the landlord may not request any further disability information. Also a landlord cannot inquire about the nature or severity of a disability. And the landlord must keep any disability information obtained strictly confidential.
The tenant request must also specify the accommodation that is needed and there must be a relationship or nexus between the disability and the requested accommodation. For instance, a person with a walking impairment may request a parking space that is closer to the rental unit as an accommodation for the impairment. In this example there is a clear nexus between the disability (walking impairment) and the requested accommodation (closer parking – hence, less walking).
A landlord is not required to provide unreasonable accommodations. In the parking space example above, perhaps the walking impaired tenant requests to park in an area that blocks an emergency exit in the building. Allowing this may violate building codes and create an undue safety hazard. Such a request would be unreasonable, and the landlord would not be required to provide the requested accommodation.
But this is not the end of the landlord’s obligations. Every accommodation request from a tenant must be addressed by the landlord – even unreasonable ones. If an unreasonable accommodation is requested, then the landlord must respond and explain why the requested accommodation is unreasonable and attempt to come up with a reasonable alternative accommodation. The landlord and tenant must communicate in an effort to reasonably accommodate the tenant’s disability. So, for instance, the landlord may respond to the tenant who requested to park in an area that blocks the emergency exit by offering the tenant an alternative parking space that is closer to the tenant’s rental unit but that does not block any exits and is not a safety hazard.
Common Examples of Tenant Requested Accommodations
Emotional Support/Comfort Animal
Far and away the most frequent accommodation request I see is from tenants who have mental impairments and request to have emotional support animals even though the lease prohibits animals. An emotional support animal, also frequently referred to as a comfort animal, is distinguishable from a service animal in that an emotional support animal is not required to have any formal training, while a service animal, such as a seeing eye dog, must be formally trained for the service it provides. Nevertheless, emotional support animals may still be reasonable accommodations for disabled persons who request one, and the landlord will likely have to allow the animal notwithstanding a lease provision prohibiting animals.
This does not mean that a disabled tenant can bring a violent animal into the rental unit or one that creates a nuisance. It also does not mean that a tenant can bring in an illegal animal, such as an alligator. Allowing these types of animals could create a danger or even be unlawful and therefore is likely unreasonable.
The tenant is obligated to care for the animal and ensure that it does not create a nuisance or disturb others or damage the rental unit. And in some instances, the tenant must obtain a license for the animal. In San Francisco, all dogs over the age of four months must have a valid dog license.
Smoke or Grow Marijuana
Another common disability accommodation request is to use or grow marijuana in the rental unit even though the lease prohibits smoking of any kind. In California, marijuana is recognized as having medicinal value, and disabled persons can use marijuana and cultivate up to 12 plants within their rental units for medicinal purposes. San Francisco permits a disabled person to cultivate up to 24 plants!
A tenant may not grow or use in such a manner that disturbs other residents in the building or damages the rental unit. A tenant cannot illegally alter the electrical wiring to support a grow operation. Nor can a tenant sell the marijuana. These activities would be unreasonable.
Hoarding is a recognized disability. Approximately 2% – 5% of the population suffers from hoarding disorder. That means that statistically there are probably a lot of rental units in San Francisco that are extremely cluttered.
Because hoarding disorder is a disability, a landlord may have to accommodate that disability before taking legal action or seeking to evict a tenant based on the condition of the rental unit. Remember that a landlord is obligated to accommodate a tenant at all stages of the tenancy – even after a termination notice has been given or an eviction lawsuit filed.
There are a variety of ways a landlord may accommodate a hoarding tenant, such as providing more time to remove the clutter, offering additional dumpsters, or even offering to assist with the removal and cleanup.
Landlords faced with hoarding tenants should be cautious in the way they handle the situation and should be mindful that the tenant is disabled and that accommodations should be given when necessary.
In addition to reasonable accommodations, fair housing laws require landlords to allow reasonable modifications to a rental unit in order to accommodate tenants with disabilities. A modification is a structural change to the property. Unlike reasonable accommodations, a tenant is generally responsible for the cost of an approved modification. And the tenant is generally responsible for restoring the rental unit to its previous condition upon moveout.
Some examples of disability related modifications include installing grab bars in bathrooms to assist persons with walking impairments and lowering cabinets or widening doors for persons in wheelchairs. Like with accommodation requests, all modification requests should be considered by the landlord, and the landlord will be expected to allow the request if reasonable or engage in a dialogue with the tenant to provide a reasonable alternative if the requested accommodation is unreasonable.
Liability for Discrimination
A property owner who discriminates in housing may be subject to various forms of liability. The owner may be liable not only to the person discriminated against, but to the government for violating applicable laws. Such liability may include fines and penalties, compensation to the person discriminated against, cease and desist orders, payment of the other side’s attorneys’ fees and costs, etc. Liability for bad faith discrimination against a tenant in San Francisco may include money damages of not less than three times the actual damage suffered by the person discriminated against, including damages for mental or emotional distress.
In short, there may be very costly consequences for discrimination. And failure to reasonably accommodate a person with a disability violates fair housing and anti-discrimination laws. So it is imperative for any housing provider to know and comply with the housing laws and disability accommodation requirements.
The Department of Fair Employment and Housing provides posters, brochures, fact sheets and other resources and information for landlords to educate themselves about fair housing and disability protection laws.
This article was originally featured in the SFAA Magazine November 2018 Issue.
© 2018 by Fried & Williams LLP. All Rights Reserved. The information contained in this article is general in nature. For advice on any particular matter, please consult with our attorneys because the facts of your situation may be unique and the law changes from time to time.