Dog, Landlord Can Coexist With Cooperation

The conventional wisdom is that dogs and apartments don’t mix. But with a little cooperation among landlord, tenant and dog, many dog owners can and do live happily in rental housing.

Even skeptical landlords may allow dogs if they become convinced they’re dealing with a responsible owner--one who produces a brief letter from a previous landlord saying what a well-mannered pet the tenant has, or who offers to put down a substantial damage deposit.

Some other factors may enter into the calculation:

* Is the dog spayed or neutered? Many problems are caused by female dogs in heat, which attract noisy and persistent suitors.

* How big is the dog? Even the nastiest dog of a toy breed isn’t likely to cause the problems of a rambunctious malamute.

* How old is the dog? A puppy is an unknown quantity, and more likely to be destructive, but an adult dog has a track record that can be verified.

Whatever agreement a landlord and tenant work out, they should put it in writing. A tenant with a dog should never sign a lease that still contains a standard “no pets” clause, even if the owner or manager has offered oral assurances that it’s all right to have the dog. If the landlord later reconsiders, or sells the property to a new owner, the dog owner could land in the middle of a legal battle.

Here are some clauses that can be adapted and included in a rental agreement or lease:

* “Tenant may keep one dog, his Miniature Schnauzer named Pepper.”

* “Tenant will remove dog droppings from the yard daily.”

* “Tenant will keep the dog inside between 10 p.m. and 7 a.m.”

* “Tenant will pay a $300 refundable security deposit, in addition to the standard security deposit of $500, to cover any damage the dog may cause.”

“In lieu of an increased security deposit, tenant will pay for steam cleaning of the carpets when she moves out.”

* “Tenant will keep $50,000 of liability insurance to cover injuries or damage caused by the dog.”

Enforcing ‘No-Pets’ Clauses

A tenant who acquires a pet in violation of a lease and refuses to give it up can generally be evicted. In some situations, however, a no-pets clause may not be enforceable if a tenant and dog are already living in a rental unit and one of the following is true:

* The tenant can prove that keeping a dog is necessary for security or health reasons. Some courts have ruled that “rampant crime” and unsafe apartments may give occupants the right to protect themselves by keeping a dog.

* The landlord agreed, no matter what the lease says, that the tenant could have a dog. For example, a New Jersey court ruled that tenants who had a dog for more than 10 years could not be kicked out of their apartment when the landlord tried to add a no-pets clause to their lease. The apartment manager had told the tenants that they could have a dog because they were such good tenants.

* The landlord has known about but not objected to a tenant’s dog for a significant period. In New York City, a landlord has three months, after finding out about a tenant’s pet, to start enforcing a no-pets clause in a lease. If the clause isn’t enforced during that period, the landlord loses the right to enforce it (unless the pet is a nuisance).

* The landlord tries to add a no-pets clause to a rental agreement or expired lease. Some cities, recognizing that adding a no-pets provision is often just a way to get ride of a tenant for another reason, have restricted the practice.

Los Angeles forbids a landlord from adding a no-pets clause and then evicting the tenant for keeping a pet if the pet was allowed before the chance, unless the pet is a nuisance. Even if the dog is a nuisance, the landlord must give the tenant a chance to correct the problem--either get rid of the pet or change the circumstances so it isn’t a nuisance--before beginning eviction proceedings.

Landlord Liability for Tenants’ Dogs

In some circumstances, a landlord may be financially responsible for damage or injury caused by a tenant’s dog. In other words, if the injured person sues the landlord, the landlord (or his insurance company), as well as the dog’s owner, may end up paying.

Just leasing premises to a tenant with a dog usually isn’t enough, by itself, to make a landlord legally responsible for a tenant’s dog. In general, when a tenant’s dog injures someone, courts hold the landlord liable only if the landlord:

* Knew the dog was dangerous and could have had the dog removed.

* “Harbored” or “kept” the tenant’s dog.

Knowing about and having power to remove a dog means, in practice, that the landlord must know that the dog has already threatened or injured someone.

For example, a landlord who knows only that a tenant’s dog is kept chained and barks at people who approach probably will not be held liable if the dog bites someone. But if the dog is particularly threatening, that may be enough evidence of a vicious tendency, as a Colorado landlord found out.

Before signing a lease, the landlord took care of two dogs that belonged to a prospective tenant. During the two weeks he had the dogs, they threatened his grandchild. Nevertheless, he rented to the tenants. When the dogs later severely injured a child, a court found the landlord liable for the injuries. The court ruled that by leasing the premises to the tenants, the landlord knowingly created a “clear potential for injury.”

Someone who “keeps” or “harbors” a dog--that is, cares for or has some control over it--can usually be held liable, like the dog’s owner, for injury the dog causes. So a landlord who does more than merely rent to a tenant who has a dog--for instance, by letting it have the run of the property--may be considered a “keeper” for purposes of liability.

For example, a landlord who lived off the premises hired a manager to take care of his Illinois apartment building. The manager allowed one tenant to fence in the building’s back yard, which all the tenants used, and keep his dog there. One day the 65-pound dog leaped over the fence and bit a boy, causing severe injuries. A court ruled that because the landlord had not exercised care, custody or control over the dog, he had not harbored the dog within the meaning of the law.

Tenants in Public Housing

In California and a few other states, elderly or disabled residents of public housing developments may keep pets in their apartments. The public agencies may make reasonable regulations about pets, but can’t make keeping a pet “financially prohibitive.”

Assistance Dogs

Federal law prohibits landlords from discriminating against disabled tenants, and that seems to include disabled tenants who need a specially trained guide, signal or service dog.

In California and some other states, state law specifically prohibits them from refusing to rent to disabled tenants who have assistance dogs.

Adapted from “Dog Law” by Mary Randolph (Nolo Press 1989, $12.95) available in bookstores or by calling 800-992-6656.