Pet Policy: Breed Restriction San Diego

[David Espana]

Hi, 

I just leased to a new tenant (six-month lease) and the tenant has moved into the premises this month. Without my knowledge and consent, the tenant brought in a pit bull (or similar breed). I discovered the pet while doing repairs last Friday. The lease is standard and does indicate no pets allowed without consent. Upon consent, I do allow pets with restrictions: I have a "dangerous breeds prohibited - list available upon request" clearly stated on the lease. I also indicate other things as well on the lease such as weight limit, pet deposit (which was not collected from the tenant) and monthly pet rent (not collected because I specifically asked the tenant if she had any pets and the answer was no). 

I asked the tenant (via email) if the dog belongs to her parents who were in town visiting. She then admitted the dog was hers and was her ESA (which means emotional support animal I think). I have not responded back so that I can plan the next steps. 

My options are: 1) to post a "three-day notice to perform or quit", 2) write her to indicate the lease violation and allow her to break the lease now to find another suitable apartment. Probably anther option would be to give her a thirty-day notice to vacate one month before her lease expires (I don't need to provide any reason in the City of San Diego as long as the tenant has lived on the premises less than two-years).

I addition, I believe that this can be a problem with my property insurance if they were to ever find out that a dangerous breed lives on the premises. 

Anyway, I welcome your thoughts. 

Thank you, 

Dave

[Russell Brazil]

Originally posted by @Dan H.:

I am not a lawyer but I question how many of the above posters who indicate that you must accept an emotional support animal have read the ADA rules.  

I have twice been threatened with legal action.  Neither occurred.  

Again I am not a lawyer but my view of the ADA rules is that they do not include ESA animals, cats (or any animal other than dogs and miniature horses) and that most posters have not looked into what ADA states.  

Normally I do not threaten eviction and would rather find alternate methods of getting rid of tenants that I do not desire.   My usual is to raise rent above market price and let the tenant provide notice.  However if they lie on their application and bring in a dog against lease terms I would consider eviction for cause as they did not abide by the terms of the lease.  

A couple of months ago I experienced the same thing.   After a discussion, the tenant offered to get rid of her ESA and I took her up on the offer and indicated that a future breaking of the lease would result in eviction. 

I suggest you read up on what is protected regardless of how you choose to proceed.  I also view nothing in the ADA allows not following lease terms and that breaking lease terms is grounds for eviction.  

But you need to decide how confrontational you want to be with these tenants.  

Good luck

The applicable law is not the ADA, but rather the FHA. Also to understand any law it is not simply a matter of reading the law as written by the legislature. Guidance memos, regulations, and enforcement policy as issued by the executive branch of the government (whether state or federal) as well as case law further expound on the law. In regards to ESAs, the application of law is from the Fair Housing Act which states a "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."

Then the question becomes what is a "reasonable accommodation?" Well then we fall back on the many guidance memos issued by HUD on the subject.....or we can simply see on HUD's website they make it even more clear in their section entitle "Reasonable Accommodations Under the Fair Housing Act:"

 "An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. For purposes of reasonable accommodation requests, neither the Fair Housing Act nor Section 504 requires an assistance animal to be individually trained or certified.5 While dogs are the most common type of assistance animal, other animals can also be assistance animals."