Q: Help! Seems like everyone wants a pet or two, and they’ll say anything to get one! I had a prospective tenant with two cats apply and when told of our no-pet policy, she said she’d leave them with her mom and then signed our lease prohibiting pets. Never mentioned any “disability” and she certainly showed no signs of any disability. She moved in, apparently hiding the cats, until we discovered them during an emergency plumbing repair. When confronted, she asked if there was any way she could keep her “pets.” She said she could even get a “sappy” note written for her that the “Fair Housing Act” required me to allow the cats because she is “disabled” and entitled to a “reasonable accommodation.” My manager said he’d consider whatever she wished to provide. Five days passed and no note. My manager followed up, she said she forgot. Seven days later, still nothing. If she truly is disabled and needs help, then sure, I’d certainly consider her request. Both my wife and I are in our 70s and would probably be considered disabled nowadays! We have several tenants who are disabled, and we have allowed pets and such. We then served a three-day notice to perform or quit to remove the pets, she vacated. Did I handle it properly? What is this Fair Housing Act anyway? And what exactly qualifies as a “disability”?
A: The Fair Housing Act defines a person with a disability to include: (i) individuals with a physical or mental impairment that substantially limits one or more major life activities; (ii) individuals who are regarded as having such an impairment; and (iii) individuals with a record of such an impairment. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.
The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.” The term “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking.
A “reasonable accommodation” is a change, exception or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. The Act makes it unlawful to refuse to make reasonable accommodations to 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.
To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.
A housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability- related need for the accommodation.
In addition, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable, i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations. The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs. In the case that you are involved with, your tenant completed a rental application for the rental. In the application she indicated that she had two “cats” as pets. She made no mention whatsoever of any purported “disability” or “handicap” and any such purported disability or handicap was not apparent.
When you advised her of the community’s restrictions on pets, she agreed to leave the cats with her mother and affirmed that she would not bring them onto the premises. There was no discussion or request regarding any purported disability or any request for accommodation based upon such purported disability.
Your tenant then executed a written rental agreement detailing the terms and conditions of her tenancy. The lease expressly prohibited the bringing or maintaining of a pet on the premises without the Lessor’s prior knowledge and express written consent.
Contrary to the express terms of the lease, your tenant brought the two cats onto the premises without asking for, nor receiving, the required written consent. She concealed the cats’ presence on the premises, never admitting her breach, and never requesting permission.
The breach of her lease was discovered by you during an emergency plumbing repair. When confronted with the discovery of her violation, the offending tenant asked if there was any way that “she could keep her pets.” She then stated that she would get someone to “write a sappy note” for her. Your resident manager responded that he would consider whatever information she wished to provide. Five days later, hearing nothing from the tenant, your manager followed up with her asking for the “note.” The tenant said, “she forgot to ask for the note” and provided nothing further. Seven days later, hearing nothing further from tenant, your manager again followed up with the tenant, without result.
Although no formal request for a reasonable accommodation was ever requested by your tenant, you properly considered her actions as an implied request for a reasonable accommodation, and you correctly engaged in a review and evaluation of the facts as they were presented to you.
To that end, you considered the evidence before you: (i) the intentional and knowing breach of the written lease by your tenant; (ii) the concealment of the cats in an effort not to be discovered; (iii) the lack of diligence by your tenant in producing any credible supporting evidence of her alleged disability; (iv) the lack of credible evidence verifying that your tenant was a person with a verifiable disability and such verifiable disability substantially impaired one or more major life activities; and (v) the lack of any evidence establishing a nexus between any purported disability and the necessity for “two cats” as opposed to an alternative accommodation. Further, you considered your tenant’s statements relative to getting a “sappy note” in evaluating the credibility and genuine need for a disability-related accommodation.
Your actions show that you recognize the very real need for a disabled person to enjoy the full use of his or her rental premises. The truly disabled individual is deserving of protections and it appears that you recognize and willingly provide such accommodations when needed. Sadly, there are people in this world who abuse and game the system for their personal benefit in their deceitful attempt to exact an advantage and “get their way” by posing as something they are not.
Based upon the facts you provided and following the above factual analysis, it would be reasonable for you to conclude that your tenant’s actions were undertaken to “game the system” in an attempt to keep her cats in direct violation of the written rental agreement which she willingly agreed to and signed. It appears that you properly engaged in the requisite dialog with the complainant, followed up repeatedly for promised information which was not provided and evaluated the information that you had available to you.
This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 285,000 landlord tenant matters throughout California and has collected over $200,000,000 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.