I recently discovered that a tenant has been fostering multiple dogs without informing me. The lease allows one pet with written approval. What are my rights here, and can I enforce the lease?
First, make sure you have evidence that each dog is in fact a pet as opposed to a service animal. Tenants with disabilities have the right to keep service animals in their apartments, even if the housing provider has a lease restriction on the number of permitted pets. Remember, assistive animals, which include both service and emotional support animals (ESAs), are not pets. Service animals are trained to perform a function for their owners, such as guide dogs to assist people who are seeing impaired or a cat that can detect someone’s oncoming seizure. ESAs, also known as comfort or support animals, are animals that provide emotional, cognitive, or other similar support to a person with a disability to assist them in managing the symptoms of their disability. But since assistive animals are not pets, a “one pet” clause in the lease agreement may not limit the number of dogs that can stay in this housing. For instance, if this tenant has one pet dog and one “foster dog” that is an ESA, then there are no grounds to object.
If the resident’s disability and need for the reasonable accommodation (e.g., living with the assistive animal) is not obvious or readily apparent, a housing provider may ask for documentation to support the request for a reasonable accommodation. However, the resident need not disclose the disability and is required only to provide enough information to document the disability-related need for the animal. Documentation may come from any reliable third party who is in a position to know about the individual’s disability or the disability-related need for the animal, such as a health care provider, therapist, social worker, non-medical service provider, member of a peer support group, parent, child, or other relative. And there is no legal requirement that an animal must be “registered” or “certified” in order for it to serve as an ESA.
Also, a resident may have more than one assistive animal. If the need for multiple assistive animals is not apparent, the housing provider may request documentation verifying a disability-related need for multiple animals. That said, you may consider whether the total impact of multiple animals in the same residence amounts to an undue burden on your ability to properly operate the building. But be careful when making this decision and consult with an attorney before denying your tenant’s request to have more than one animal. In addition, you may not charge someone with an assistive animal a “pet deposit,” “pet rent,” or any other fee, even if you impose these charges on folks with pets. Lastly, restrictions on the breed, size, or weight of assistive animals are prohibited, including those imposed by insurance companies.
Assuming you know that none of these dogs are assistive animals, you may object to multiple dogs if you have a clear clause in the lease agreement limiting the resident to one pet. The SFAA Residential Tenancy Agreement, for example, prohibits all pets and clearly states as such:
22. PETS: No animals are allowed in or about the Premises, or in, on or about the property in which the Premises is located, even temporarily or with a visiting guest, except as allowed by law or by the express written consent of Owner.
Do not process rent until this issue is entirely resolved to your satisfaction and confer with your attorney to help you draft and serve a proper notice to cure the violation of the rental agreement. Thus, once you have determined that the foster dogs are indeed pets and not service or ESA animals, proceed quickly to address the apparent breach of the lease, which may include the issuance of a formal notice to cure followed by an unlawful detainer (eviction) court action.