companion dog

27 Replies

I was driving by one of my properties when I noticed my tenant had a pit bull in her unit of the duplex (spring valley CA). The duplex has a no pet policy.

My property manager gave her a 30 day notice to cure or vacate (should have been 3 day). The tenant (who is section 8) now says this a "companion animal". She is seeking assistance from the "Legal aid society" and presents me with a letter from a doctor that states the following:

"Over the years, she (the tenant) has been somewhat depressed despite the medications I provide for her. Her companionship with her pets are much more important for which reason I am suggesting she take a dog in her residence".

I have read a lot on the the Emotional Support Animal (ESA) and the HUD document that covers it. It does suggest that the tenant must be "disabled" and the ESA must help with that disability.

I am fairly convinced that the letter by the physician does not establish "disability". The doctor is not returning my calls.

Any idea on how to proceed? Or should I fold and just hope for the best. My concern is that should something bad happen with the dog, my insurance company may state that I did not do my due diligence before allowing the dog into the house. I have established the dog was in the unit for at least a month before I spotted it, and the doctor has been suspended twice in the past for malpractice.

Wow, when I first read through this, I started chuckling a bit with the whole deal involving the "pit bull assistance dog", yet another section 8 tenant who when given an inch always takes not just a yard, but several yards, etc !!! I don't know if I should laugh at what sounds like more absurdity or pull my hair out pondering the future of our awesome country, which so often seems to be devolving into a sad paradise for people who know how to game the system!

Yet, taking a step back from all of that, I think you really need to take this matter seriously and to proceed with much caution and forethought! First off, no matter how ridiculous the whole idea of having a pit bull as an assistance dog to help with depression may seem at first, the truth is that in SOME cases, depression and/or other mental issues can certainly cause people severe disabilities that are just as debilitating as any physical condition. No, its not anything obvious like someone who's confined to a wheelchair, but it can still really ruin people's lives and it can't be proven or disproved with an X ray or a cat scan that can show whether or not a spinal injury for instance, is really there or not. So, assuming that you're not a psychiatrist, I'd avoid dismissing the validity of this doctor's letter on your own. Also, while the prior malpractice claims may tell us that this doctor is a quack, it also could be a red herring, too!

I'm wondering if you should just go to your insurance company on this or not? I'm not 100% sure, but I think that even if your ins company bans pit bulls (which it seems like pretty much every ins co. does these days) I think there is a law exempting service dogs, much like how service dogs are exempted from being barred from going in to stores, restaurants, etc. So, I would think that the insurance company would likely want to have their attorneys investigate whether or not this particular pit bull is really a legitimate service dog or ESA or whatever they want to call it. Obviously, if you want to keep this quiet from your insurance company, you could just hire your own legal counsel, but we all know that will likely cost a bundle! I guess you have to weigh out whether or not you want your ins co to know about this, I personally would lean towards getting them involved.

My final thought also involves the tenant's threat of getting legal aid involved. This goes back to handling the whole issue of the mental illness claim and all of that. I'd tread carefully there as well because you also certainly do not want some bleeding heart legal aid attorney getting the impression that you are some "evil landlord" that evicts tenants with depression and/or mental illness because you don't like ESA dogs. You just might light a big fire under that attorney and cause him/her to come after you as hard as they can to make an example out of someone they think is abusing the mentally ill! It may sound far fetched, but its not out of the realm of possibility! So, what started out as some section 8 tenant using a bogus depression claim to find a back door way to keep a pit bull could turn into something totally different, there certainly are activist lawyers out there always looking for a cause!

EDIT: After posting that original comment, I saw this thread which I'd certainly recommend you read:

http://www.biggerpockets.com/forums/52/topics/104090-federal-housing-laws-service-and-support-dogs-landlords-rights

It spells out pretty clearly some of what I'd assumed, that service dogs are exempted from dog bans. Having been in the restaurant biz for a while, I know that the ADA (Americans with Disabilities Act) is nothing to take lightly or mess around with, they can really hang you! Also, as I touched on, even if you think or are even totally sure that this pit bull service dog is just a sham, being backed up with a letter from a sham doctor (which may well be true, I'm not denying its possible!) don't waste your time fighting that case yourself, you'll need a comparable expert to disprove that doctor's letter, even if its plainly obvious to be total crap!

What your tenant provided would not be enough for me to allow her to keep the dog. I would require much more documentation. There is much on this topic in related discussions. Check out other BP threads. If she were my tenant, she would have violated our rental agreement by just bringing the animal on the premises. We require a formal process for tenants to request a "reasonable accommodation" and bringing an animal into her home and presenting me with a letter from a "doc" doesn't cut it.

Anybody can call any animal a "service animal". There is no official sanctioning organization. She may be really depressed but there is no justification to allow that particular breed, because there is no official paperwork that distinguishes that breed or that specific animal from a suitable substitute.

Quote:
The international assistance animal community has categorized three types of assistance animals:

Guide animal—to guide the blind
Hearing animal—to signal the hearing impaired
Service animal—to do work for persons with disabilities other than blindness or deafness.
End quote.

I say no to a pit bull and no to that tenant. No dog policy - she knew when she rented from you.

After I read the two responses following my (looonmnnggg!) response, I started to think maybe I was off base on my advice, so I did a little more research and I'd highly suggest that everyone here take a few minutes and read something I just found. After having done some more reading on this, I'm going to have to disagree with the last two comments 100% and tell you you're nuts to just summarily evict this woman and I'd move very cautiously! Yes, there are a few grey areas and one thing she did do wrong was to not inform you PRIOR to bringing her "pit bull support dog" on the premesis, but that doesn't at all mean you win just because of that. At best, if you evict her and litigate it and somehow win the case, you still going to be stuck with some BIG legal bills! I'm not exactly sure how to give a link for this, as its a pdf file download, but if you simply google "ESA dog" in the results that I get (which I know people's results will vary-just part of the amazing world of google!) is titled "Right to Emotional Support Animals in "no pet" housing" its from a website, www.bazelon.org. Some of the pertinent parts I found include:

The Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act protect the right of people with disabilities to keep emotional support animals, even when a landlord's policy explicitly prohibits pets. Because emotional support and service animals are not "pets," but rather are considered to be more like assistive aids such as wheelchairs, the law will generally require the landlord to make an exception to its "no pet" policy so that a tenant with a disability can fully use and enjoy his or her dwelling. In most housing complexes, so long as the tenant has a letter or prescription from an appropriate professional, such as a therapist or physician, and meets the definition of a person with a disability, he or she is entitled to a reasonable accommodation that would allow an emotional support animal in the apartment.

So, right there it says that a letter from her doctor (or even her "therapist") is good enough for that part of the requirement. As far as the part about emotional support animals being considered to be be more like wheelchairs, what exactly do you think the feds would do to a landlord who hated how the wheelchair ramp going into one of his buildings ruined the looks of the place, so one day he came with a Sawzall and just hacked the whole thing apart and told the wheelchair bound residents who complained to "go stick it"?

Discrimination under the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling." 42 U.S.C.

For the love of all that is holy, talk to a lawyer before taking the advice to just toss her out. Otherwise, you may not have to worry about managing the property any longer, and she may not have to worry about asking a landlord's permission for anything :).

After I read the two responses following my (looonmnnggg!) response, I started to think maybe I was off base on my advice, so I did a little more research and I'd highly suggest that everyone here take a few minutes and read something I just found. After having done some more reading on this, I'm going to have to disagree with the last two comments 100% and tell you you're nuts to just summarily evict this woman and I'd move very cautiously! Yes, there are a few grey areas and one thing she did do wrong was to not inform you PRIOR to bringing her "pit bull support dog" on the premesis, but that doesn't at all mean you win just because of that. At best, if you evict her and litigate it and somehow win the case, you still going to be stuck with some BIG legal bills! I'm not exactly sure how to give a link for this, as its a pdf file download, but if you simply google "ESA dog" in the results that I get (which I know people's results will vary-just part of the amazing world of google!) is titled "Right to Emotional Support Animals in "no pet" housing" its from a website, www.bazelon.org. Some of the pertinent parts I found include:

The Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act protect the right of people with disabilities to keep emotional support animals, even when a landlord's policy explicitly prohibits pets. Because emotional support and service animals are not "pets," but rather are considered to be more like assistive aids such as wheelchairs, the law will generally require the landlord to make an exception to its "no pet" policy so that a tenant with a disability can fully use and enjoy his or her dwelling. In most housing complexes, so long as the tenant has a letter or prescription from an appropriate professional, such as a therapist or physician, and meets the definition of a person with a disability, he or she is entitled to a reasonable accommodation that would allow an emotional support animal in the apartment.

So, right there it says that a letter from her doctor (or even her "therapist") is good enough for that part of the requirement.

Discrimination under the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling." 42 U.S.C.

As much as I can type nearly a whole book sometimes like I just did, I have to admit that Richard C did sum up my thoughts perfectly! After reading what I read (and posted here for everyone else to read) I come to the same conclusion, if you want to be Mr. Harda** and throw the lady and her "pit bull support dog" out on the curb, don't be shocked if in a year or so, SHE holds the deed to what used to be YOUR building!

So let me say right off that I have no plans to evict this person yet. At this point I am trying to educate myself before approaching a lawyer. I have also read HUD doc and the docs by a Disability Rights CA (an advocacy group).

The part that I am struggling to grapple with is ways to "establish disability". I did get a chance to talk to the Doctors assistant and she told me that the tenant was not considered "disabled" and the letter was more of a "request" and it was up to me to allow it. Well that is all fine and good but the tenants legal aid seems to think that it is sufficient. Besides, the doc hasn't gone on record to admit to the above.

The fact she got a dog into the unit without informing me doesn't matter (the lawyer Dornish quotes cases where the court did not hold that against the tenant). Insurance will probably cover me in case of service/comfort dog incident. However they will drop me son after or if it is proved that there was no disability to begin with, they might deny the claim. I have already notified them. I told the doctors assistance that doctor is also now liable. The doctor wasn't aware of the breed of the dog either.

Any recommendations on Lawyers in San Diego that deal with the issues related to disability law?

@Robert Taylor and @Richard C. From what I read here, no one is suggesting that the tenant should be tossed out or evicted. One does need to understand how to appropriately respond to a tenant with a disability who requests a "reasonable accommodation" or claims entitlement to a service animal or emotional support animal or companion animal. And yes, seeking legal counsel may be necessary. It is a very delicate area of law.

@Mahesh K. To answer your question on how to proceed, no one can give you legal counsel on BP, but there has been quite a bit of discussion in previous threads that I think you will find helpful and links to reliable sources. This tenant may or may not have a "qualified disability" and this particular dog may or may not be a "reasonable accommodation". You will need more information before that can be determined. Proceed carefully. Seek appropriate legal counsel as necessary.

@Mahesh K. Good job. You were posting at the same time I was composing a response. You read my mind. I found the article posted by @Steve Babiak (http://dornish.net/service-animals-for-tenants-with-disabilities) to be quite helpful too, as I see you have. You are on the right track. If you have a good relationship with a landlord-tenant law attorney, they might be able to give you the referral you are seeking for an attorney who specializes in disability law. Good luck and keep us posted.

Insurance might be a sticking point, as a pit bull is an excluded breed by almost all insurers who exclude dangerous breeds. The reasonableness of the accommodation is the key there, your having to pay a higher premium to get insurance is not so reasonable.

I agree with @Steve Babiak , and I would also wonder how different condo associations would handle this. I had a potential applicant call last year about renting one of our units, and said her 50+ pound "part pit-bull" is a service animal. The association told me they would not approve it, both because they don't accept pit bulls and there is a 20 pound limit for an animal. The applicant got a little testy with me and said they couldn't refuse her. I told her she would have to take it up with the association. Never heard from her again.

@Mahesh K. when does the lease expire? If the tenant is willing to fight is this issue worth the legal fees you could incur?

Im no lawyer but who is the judge going to listen to you as the landlord or a doctor saying that the dog is a service animal? I think the doctor has the advantage here.

Even if you do win how long does an eviction take in the county where your property is located?

Hmmmm, I'm a bit confused on a few things now, mainly @Marcia Maynard

and the part about "no one suggesting the tenant be evicted" In the original post, he says that his property manager already gave her a 30 day notice to cure or vacate. (and on top of that he added that he would've given her a THREE day notice!) Now, its quite obvious that of her two options after being given that notice that she's not even remotely considering to cure the violation (thus getting rid of the pit bull) as evidenced by her bringing legal aid into the matter as well as presenting the letter from her doctor. So, her only option left is to vacate, which as far as I'm concerned is eviction in everything but name! I'm not trying to be a smart a** here, (that's one thing (of many!) that I really like and respect about BP as compared to so many other web forums where it seems like the members spend more time flaming and putting each other down as they do exchanging actual info!) but honestly, if giving her a cure or vacate notice and you know darn well she won't cure anything, is NOT eviction, then what in the world is eviction???

Now, my other concern for Mahesh here is to find some way out of this mess that is obviously not his fault without having to spend some ridiculous sum of money on legal representation. Sure, going to court and prevailing is great (although certainly not guaranteed!) but if in the middle of the after-court victory bash he gets handed a $20,000 bill from the kick butt attorney that just won the case for him, I'd consider that to be a very hollow victory myself!

@Eddie T. The tenant is on a month to month now since her lease is over.

It seems to me that with this tenant, I fight the legal battle here or maybe a more expensive one down the road when the dog does some damage. BTW, I am not suggesting that the tenant is not disabled. I just don't know if she is. The doctor is not willing to clarify either (which is pretty much why he used the words "somewhat depressed"). If the tenant is not disabled, I will not allow the dog for several reasons and a big one being my insurance will not cover it.

@Steve Babiak I am pretty sure insurance is required to cover a companion animal just as I am required to let them stay (ADA). They are not considered a pet. However, I think the animal will be considered a "pet" if the tenant is not disabled. In that case my insurance will not cover it as they have a list of dog they consider "attack" dogs, the pit bull being one of them. Ironically, that is why my tenant has "Beware of Dog" sign outside the unit.

@Robert Taylor Keep in mind that when the 30 letter was served, there was no indication this was to be considered a companion animal. At that time the tenant said that she believed it was ok to have a dog on the property as long as there was a pet deposit. When the tenant was notified she signed a no pet policy as a part of the rental agreement, she sought legal advice and provided this a letter from the doctor.

@Mahesh K. - since your insurance will not cover this animal, then that starts to be unreasonable upon you to have to change insurance. And you might have difficulty finding a company that would offer coverage. And that coverage with another company might be more expensive to you. This is the stuff that is your basis for this situation (the animal being allowed to remain) as not being a reasonable accommodation.

@Steve Babiak is right about insurance being a significant factor. From an article put out by the Human Rights/Fair Housing Commission...

"As the term suggests any request for a reasonable accommodation has to be reasonable. If the request causes a financial or administrative burden to the home provider/landlord then the reasonable accommodation can be denied. An example of a financial burden created by requesting a companion animal would include the risk of the landlord losing their insurance policy because the landlord's policy had a rule that prohibited certain breeds of dogs on the property because these breeds are considered to have a higher propensity for attacking humans than other breeds."

I'm curious now, since the tenant is Section 8, would Section 8 pay any additional insurance premiums if you are required to allow the dog to stay and your insurance company will allow it with a higher premium?

@Mahesh K. I have to say that I feel for you, this is one of those situations where no matter which route you end up taking, there are many possible pitfalls, so lets hope that things work out for you in the end, which is certainly possible, its certainly also possible that things will work out one way or another here.

I really urge you to read this pdf file that I cut and pasted some of the parts of in my earlier post, I wish I could link to it but its a pdf download but just google "esa dog" and look for the "Right to Emotional Support Animals in "no pet" housingresult, its something I think was written by an attorney that sounds like he comes from the point of view of being an attorney that represents the people claiming disability. Its interesting (as well as bothersome!) how many of the various issues they cover in there are quite open to interpretation, which to me means just more money for the lawyers!

@Robert Taylor I have read that article in fair amount of detail. That article has a section "is the tenant with disability" and a sample letter from a service provider. I will be providing my tenant that letter so that her doctor can fill it out. If the doctor can verify that this tenant is disabled and hence has limitations that can be met by the companion, I will have have no issues with it.

In the interim, I did present the letter from the doctor to a lawyer. He said that doctor in no way said the tenant was disabled and was of no value to the tenants claim.

Let us know how this goes. Landlords like us should not be taken advantaged by these types of tenants. Your experience will help all of us here. Thanks in advance!

@Mahesh K.

Here is a link to the article I quoted earlier. A little more info for you.

http://www.hrfh.org/articles/companion_animal.pdf

We all know there are legitimate requests that we receive from tenants. We also know there are people who fake being disabled and a few doctors and other service workers who enable them to deceive. Not to mention the internet websites that sell fake ID.

I have 14 years experience as the Accessibility Services Manager at a major medical center and 19 years experience as a residential landlord. I have arranged for numerous disability related accommodations over the years.

Based on my experience, I believe a person with a legitimate disability and a real need for an accommodation would most likely approach this differently than your tenant did. For one, they would have contacted you in advance of bringing the dog on the property and quite possibly they would have had their documentation ready for review. The manner in which your tenant moved on this raises a big RED FLAG for me. I certainly would drill down on this one, with legal assistance, and out her.

How long has she been your tenant living there successfully without this pit bull dog? How did she come to acquire it and suddenly need it now? Why did she not pursue an accommodation prior to receiving a legal notice to conform to the terms of your rental agreement? How could she not know a dog in her unit, without any prior communication with the PM or you, would be perceived as a violation of your no pet rule? Of course she knew.

If she actually does meet the criteria for being disabled and legitimately requires the assistance of this particular animal, by all means make the accommodation. But even people with legitimate disabilities may make requests that are not considered reasonable accommodations. There also could be an alternative accommodation that would meet her need. Such as a poodle instead of a pit. There is sometimes room for negotiation.

If the dog stays, there are parameters that you can require for the care of the dog and you are still entitled to be paid for damages to your property caused by the dog. Any animal that shows signs of aggression can be removed with due process. You need to be able to enter your property when necessary without fear of attack.

Keep doing the right thing. Stay calm and focused. We're here for you.

[no legal advice]

@Marcia Maynard I know the dog has been in the property since at least March 1st. The tenant likes to post pics on social media ;) I also saw the dog had 2 pups but I couldn't conclude they were in my house. I found the dog a month later when I drove by (there was a "beware of dog sign" and the dog kept barking at me when I approached the gate to take a photo). So she wasn't trying to hide the dog. Yes ... typical entitlement mentality. She has lived in the unit for 3 years without the dog.

The tenant has violated several clauses of the rental agreement. We asked her for renters insurance (it is required in the lease) and it was originated 2 days after it was demanded. She obvious never had one for over a year.

The neighbor (it is a duplex) went on vacation and came back to find the tenant (or her son) had broken his cable box and jumped his cable. Cox has a report but they won't share it with me without the presence of the neighboring tenant.

The neighbor said they smoke a lot of weed and he can get high just by being around. He won't provide this to me in writing though. He says he doesn't want to go to court. Maybe that is what is causing her be "somewhat depressed".

Thanks for the advise. Will report back on how this pans out.

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