Pets in Rental Housing – Part 2
Pets in Rental Housing – Part 2
In Part 1 of this series we discussed some basic issues related to landlord pet policy, primarily why it might be beneficial to be a pet friendly landlord. In this Part 2, we’ll discuss certain issues in more detail.
In review, opportunities exist to accommodate tenants with pets. Renting to pet owners may make good business sense. Landlords may receive the benefits of additional rental income and potentially fewer vacancies, as studies have shown that renters with pets average a longer rental stay than those renters without pets, likely due to the potential difficulty of finding a satisfactory new pet friendly rental property.
Recent polls show the following:
About two-thirds of renters who needed to find a new rental unit during 2014 experienced difficulty in finding rental housing that allows pets.
For 90 percent of the tenants who have pets, landlord or property manager pet policies played a major part in deciding where to rent.
When deciding where to rent, about 70 percent of pet owning tenants looked for availability of pet amenities such as parks, pet stores, groomers, pet care, and veterinarians being nearby or located within reasonable distance of their rental housing.
In general, a tenant does not have a “right” to have a pet on the rental property and it is not a violation of fair housing laws when pets are prohibited. Accordingly, a landlord can legally refuse to rent to tenants having pets or to allow some specific types of pets and prohibit others.
However, although landlords can prohibit pets, they cannot refuse to rent to an applicant with an animal that is a trained service or companion animal and no “pet deposit” can be required for such an animal. Such animals may be other than dogs. Accordingly, to minimize potential discrimination claims, landlords should consider clarifying in spoken or written discussion of their “no-pet” policies that the prohibition does not apply to animals excepted under fair housing laws or the Americans with Disabilities Act (ADA).
Those landlords with a “no pets” policy cite concerns about pet related damage, noise and other annoyance issues, and liability for injury. Landlords who welcome animal companions, advertising “pet friendly” living, address these concerns through the use of pet deposits and/or rent differentials (as allowed by law), detailed written policies regarding pets, and adequately written pet agreements.
Since most pet owners consider their pet as family, it may take some diplomacy if a “family member” is ineligible according to the landlord’s standard pet policies. Setting reasonable, common sense standards in accordance with laws and insurer prohibitions should allow the majority of pets and their owners the chance to qualify for tenancy.
Requiring that pets have successfully completed obedience training, have regular health examinations, are licensed, are current with required vaccinations, and must be kept under control at all times are possible requirements that can reduce unwanted behaviors.
Deposits/Fees/Rents
Any additional deposits, rents, or other fees based on pets must be in accordance with state law. For example, pet security deposits may be collected in addition to the maximum allowed security deposit in some states, but the maximum security deposit includes the amount of any pet deposit in other states. Also, in some states the pet deposit cannot be used for unpaid rent or non-pet related physical damages.
In those states not having a limit on a separate pet deposit or additional pet rent, the maximum amount is limited by the rental market, the availability of valued pet amenities, and the financial conditions of potential applicants.
Pet Policies
Although one usually doesn’t consider all animals as being possible pets, there are some people who do consider any animal to be a possible pet. Accordingly, an adequately written pet policy and pet agreement must take this fact into account.
A good pet policy backed by an adequate pet agreement can provide the tools needed for the landlord to better control tenants’ pets and to more effectively deal with a tenant and/or the tenant’s offending animal.
For general understanding and to be legally enforceable, pet policies must be written, specific, detailed, and unambiguous.
If all pets are prohibited, then landlord advertising should state that fact and when speaking with potential applicants for the first time or when handing out application forms a landlord should be sure to state his policy. If not disclosed at first contact, both the applicant and the landlord may be wasting time.
For the same reason, when pets are allowed, but must meet the landlord’s qualifying criteria, this fact and qualification information should be stated in spoken or written communication. Even if a landlord has previously mentioned his pet policy on the phone, making sure applicants fully understand the policy is best accomplished by providing detailed written information attached to application forms handed out to all prospects.
An inconsistent pet policy that allows some tenants to have a particular type or number of pets while denying other tenants to have a similar type or number of pets is usually a bad idea because it can result in bad landlord-tenant relationships. Furthermore, an inconsistent policy can lead to a discrimination claim.
Advertising
Proper advertising can be important to avoiding problems. When landlords advertise that they are “pet friendly” they should be careful of how the advertising is worded. Stating the monthly rent and security deposit for a non-pet owner tenant in ad copy and then informing a caller that if he/she has a pet, the rent and/or deposit will be a different amount could be construed as false and deceptive advertising.
When marketing a vacancy, landlords should state their pet policies when replying to inquiries regarding whether or not pets are allowed in the rental unit. If pets are not allowed, landlords should consider clarifying that the prohibition does not apply to animals excepted under fair housing laws or the ADA.
If pets are allowed, landlords should provide detailed information about which animals are acceptable. Listing acceptable animals is much easier than creating a list of all possible unacceptable animals, the latter also likely to miss many or those that would not be acceptable. State the amount of any pet deposit (potentially refundable), the amount of any monthly pet rent surcharge, and any other cost related to a pet. The pet agreement should include clauses stating the potential penalties for failing to abide by its terms.
Pet Agreement
In general, a landlord can hold a tenant responsible for any damages caused by the tenant, by members of the tenant’s family, by guests of the tenant, by agents of the tenant, and by animals brought on to the leased premises. This includes damages to property of the landlord inside and outside the tenant’s particular rental unit, damages to property of other tenants, and damages to property of visitors to the property. Also included are injuries caused by any of the listed persons or by their animals.
However, rather than depend on general principles of law it is far better for a landlord to have a good written policy regarding pets that is made known to potential applicants in advance and is explicitly agreed to by all tenants by signing a document – usually titled “Pet Agreement” – agreeing to abide by the landlord’s pet policy. Such agreements should include both rules/agreements regarding prohibition against tenant actions and penalties for violating those rules/agreements.
Although many landlords resist creating long lease agreements, more detail is almost always better than less. The degree of protection for a landlord depends on how well the pet policy is designed, how well the landlord verifies conformance by tenants, and how rigorously a landlord enforces the policy.
The pet agreement can be a section titled “Pets” that is totally within the lease agreement document itself or a separate “Pet Agreement” addendum referenced in the lease agreement can be utilized.
It is also worth mentioning that having a pet and having an “approved” pet are entirely different issues that must be clarified with prospects, applicants, and tenants. Most pet owners have a cat or dog, sometimes birds, fish or small mammals. Some pet owners have exotic pets, some of which can be seriously dangerous. Accordingly, all pets must require approval.
Insurance Issues
There is another important point regarding the setting of pet policies. Landlords absolutely must also have an insurance policy that adequately covers the landlord regarding tenant owned pets.
Insurance policy liability coverage on a rental property may exempt certain types of animals or certain dog breeds or impose other restrictions regarding tenants and their pets. Understand what those conditions or restrictions are before putting out the welcome mat to all pets. Restrictions on types of animals as well as control requirements must be incorporated into the landlord’s rental policies and lease documentation. Most importantly, restrictions should include prohibition of those animals that the landlord’s insurance policy will not cover for liability or that could pose a danger to others.
Landlords should always prohibit any animals that are excluded from the liability coverage under their landlord insurance policy – e.g., dog breeds that are considered dangerous. If allowed by law where a rental property is located and if market conditions allow, landlords should consider requiring that tenants carry rental insurance that includes adequate liability coverages for tenant-owned animals, while also still prohibiting animals not covered by the landlord’s liability insurance.
For both of the above issues, detailed pet policy documentation and strict enforcement of the policy may be beneficial if there is an event that occurs when a tenant has an unauthorized animal on the leased premises.
Landlords should also be aware of the fact that an increasing number of jurisdictions are making the landlord fully liable for injuries to others and for damages to the property of others caused by tenants’ animals. Landlords should keep up to date regarding such laws in the state and local jurisdiction where their rental properties are located. In jurisdictions where landlords are made explicitly liable for tenant-owned animals, landlords must take extra care to have adequate lease documentation, adamantly prohibit animals excluded from the landlord’s liability insurance, require renter insurance having adequate liability coverage, and always strictly enforce their pet policy.
In future parts of this series we’ll discuss in greater detail some of the issues discussed above as well as various other issues.