Receive news, updates and special deals by Joining AOA's Online Newsletter. Click now to sign up!

Legal Q & A – by Richard Beckman, Attorney

Posted on 01. Jun, 2013 by in all

Facebook Twitter Email Linkedin Digg

Question 1: In regards to “service” animals or “emotional support” animals, please describe what documents a prospective tenant should present to the landlord to qualify for exemption from the “No Pets” policy. Is the landlord legally protected if these documents are not produced?
Answer 1. The first aspect of answering your question is to make clear that there is a legal distinction between “service” animals and “emotional support” animals. “Service” animals are defined by statute, and must be allowed in a rental dwelling if the tenant requests. Pursuant to Civil Code Section 54.1, a “guide dog” means any guide dog that was trained by a specially licensed person; a “signal dog” means any dog trained to alert an individual who is deaf or hearing impaired to intruders or sounds; and a “service dog” means any dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.

As the statute explains “It shall be deemed a denial of equal access to housing accommodations within the meaning of this subdivision for any person, firm, or corporation to refuse to lease or rent housing accommodations to an individual who is blind or visually impaired on the basis that the individual uses the services of a guide dog, an individual who is deaf or hearing impaired on the basis that the individual uses the services of a signal dog, or to an individual with any other disability on the basis that the individual uses the services of a service dog, or to refuse to permit such an individual who is blind or visually impaired to keep a guide dog, an individual who is deaf or hearing impaired to keep a signal dog, or an individual with any other disability to keep a service dog on the premises.  As for documentation, these dogs are specialized enough that it should not be difficult to confirm that a tenant has a qualifying service dog.

On the other hand, a ”companion” or ”emotional support’ animal is a more expansive concept, and falls under the state and federal fair housing rule known as a ‘reasonable accommodation.” The leading case on the companion animal is Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com., (2004) 121 Cal. App. 4th 1578. In this case, the court held that a couple were allowed to have a small dog – Pooky – despite a HOA rule against dogs, since there was “abundant evidence introduced at the hearing that the Elebiaris’ disabilities interfered with the use and enjoyment of their home, and that having a dog improved this situation.” See the case itself for further discussion of the concept, which the court covered in detail. In summary, the necessary evidence must be sufficient for a reasonable person to conclude both that the tenant has a disability, and that the requested pet is medically necessary for the tenant’s health. As the court in Auburn Woods noted, “We reiterate that the FEHC did not rule that companion pets are always a reasonable accommodation for individuals with mental disabilities. Each inquiry is fact specific and requires a case-by-case determination. But it is clear that, under the right circumstances, allowing a pet despite a no-pets policy may constitute a reasonable accommodation.”

A landlord can be liable for housing discrimination if he or she fails to exercise proper care in such cases. The Auburn Woods court explains the elements of a discrimination claim for failing to make a reasonable accommodation – “ In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation.” As for the landlord’s liability in terms of seeking and receiving the necessary evidence (documents, or other evidence such as testimony), if you have any doubt about whether the tenant has provided sufficient documentation or other evidence, you should consult with someone familiar with fair housing laws.

Question 2: I have a tenant that had to be put up in a hotel for a few nights due to a water leak from the unit above. What if any is the standard amount deemed reasonable as a per-diem for meals during the time she was displaced? In addition, she had a guest. Are we responsible for supplying meals for non-tenants?

Answer 2: If the unit is uninhabitable due to something beyond the tenant’s control, then the landlord is in breach of the contractual obligation to provide habitable premises. A breach of contact entitles the other party (the tenant in this case) to ‘damages’. Civil Code section 3300 provides: “For the breach of an obligation arising from contract, the measure of damages is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” “The basic object of damages is compensation, and in the law of contracts the theory is that the party injured by a breach should receive as nearly as possible the equivalent of the benefits of performance. The aim is to put the injured party in as good a position as he would have been had performance been rendered as promised. This aim can never be exactly attained yet that is the problem the trial court is required to resolve.” (Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 455.

What all this means is that there is no specific ‘number’ that will definitely answer your question. If the tenant pays for meals he or she could have made more cheaply in the apartment, that difference would constitute part of the damages claim. As for a per diem, since the tenant is the ‘victim’ of the water leak, it would probably be wise to err on the high side of compensation, so that the tenant returns to the unit not feeling resentment toward the landlord (you), which can manifest itself in ways not foreseeable, but which will almost certainly degrade the relationship, and possibly turn small annoyances into more contested issues. However, there is probably no obligation, morally or legally, to feed the tenant’s friend.

Question 3: I would like to place central heating in a rental house. The elderly tenant always has excuses and has given us notes in writing that she does not like people in and out of the house. We have an estimate and are ready to begin. My understanding is that California law requires heating units in rental properties. In a prior rent dispute a few years back she complained that no heat was in place but has frustrated us from installing it for two years by not being available or not letting contractors inside. What are our options? Is there a statement we can give her showing the law concerning heating units required?

Answer 3: You are correct thatCalifornia law requires that every rental unit be equipped with an approved source of heat. See Civil Code Section 1941.1 and local building or housing codes. If the unit currently has none, then you do need to act promptly to correct that problem, as failure to provide an approved heat source is considered a violation of the landlord’s obligation to provide habitable premises. The tenant has an obligation to cooperate with your reasonable request for access to perform maintenance and repairs. See Civil Code Section 1954. If the work requires the tenant to vacate because the unit will not be habitable during the work (for example, a major Kitchen remodel, or other similarly disruptive effort), then the tenancy would need to be temporarily terminated, according to the procedures of the local rent and eviction control law (for example, Measure EE in Oakland).

However, rather than resort to your legal options, I would recommend contacting the tenant (despite her two years of non-cooperation), and trying to have her identify a person she trusts, and then contact that person and explain what you are intending to do, so that person can, possibly, reassure the tenant of the necessity and propriety of the work you need to do, and the tenant’s obligation to cooperate. Your plans should be a benefit to her, not a reason for litigation. However, if she ultimately simply refuses to cooperate, you have legal options that you can employ to compel her cooperation.

Question 4: I have two tenants, male and female. I ran each one through the background checking procedure. They both check out with “A” rating. They claim to be married but have different last names. I have no proof of their marriage and do not know how to get it without “conflicting” with privacy laws etc. Do I need to know or does it not matter to know?
Answer 4: Asking for evidence of the prospective tenants’ marital relationship would put you at risk of a charge of rental discrimination based on family or marital status. If your applicants check out in every respect, I suspect your feeling that it ‘does not matter to know’ is probably your own best answer.

Question 5:  We have military tenants breaking their lease because they are being re-stationed. We received their orders. We know that we cannot charge them for the rent for the balance of their lease (or until re-rented) but we want to charge them for the leasing fee which the owner paid the property manager when we leased the property for them. The CAR lease has a statement that would allow us to charge this when is lease is broken, but I am not sure if it is legal for us to charge this to military tenants when they break a lease?
Answer 5: The Soldiers & Sailors Civil Relief Act (SSCRA), which is the federal law you refer to in your question, permits active duty military to terminate leases with written notice, and without liability for any future rent obligations. While the federal statute does not mention leasing fees paid by the landlord to a leasing agent, I am confident no court would award such fees against the military member. Assuming the military tenant has no liability for that leasing fee, it really comes down to the agreement between the owner and the agent as to how that fee, or refund of it, is handled. It would seem to be equitable for the agent to pro-rate the fee, based on the length of the actual tenancy, rather than the anticipated tenancy. But the listing agreement may have a different solution in such cases, and should be reviewed carefully.

Question 6: My tenant has not paid the second half of the security deposit and a late fee from last month, which are both terms agreed on the lease agreement. What are the legal steps I can take to collect?

Answer 6: You can serve a three day notice that demands compliance with the lease obligations, at least with regard to the unpaid security deposit. It would be a standard “Three Day Notice to Cure or Quit’ and then a specific explanation of what she is required to do. Please see the AOA forms list for the proper form for a general three day notice to cure or quit, though it may need to be modified to reflect your specific situation (for example,  Oakland landlords should always note that most three day notices in Oakland also require a ‘pre-notice’ notice before the actual three notice to cure or quit may be served. Please be sure to check any local ordinance for such requirements.) Late fees are a little more problematic, but you can try to collect it by serving the three day notice to cure or quit. However, because the law on late fees is a bit complicated when they are the basis of an eviction action, I recommend checking with an attorney before initiating the eviction action should the tenant fail to cure the notice by paying the late fee.  

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-871-0070; email rich@beckmanblairllp.com or by visiting the website www.beckmanblairllp.com.