As all pet-owning tenants know, most standard leases and rental agreements contain no-pets clauses. Such provisions are legal everywhere, and courts generally allow a landlord to evict a tenant who acquires a pet in violation of a lease clause and refuses to give it up.
In certain situations, however, a landlord may not be able to enforce a no-pets clause if the dog is already living in a rental unit and:
- The landlord tries to add a no-pets clause to a rental agreement; or
- The landlords tries to enforce an existing no-pets clause, after knowing about but not objecting to a tenant's dog for a significant period; or
- The landlord agreed, no matter what the lease says, that the tenant could have a dog; or
- The tenant can prove that keeping a dog is necessary for security or health reasons.
You don't want to go to court to argue about any of these theories if you can possibly avoid it. So if a landlord tries to get rid of you or your pet, sit down together and try to work things out. You may end up paying a little more rent or putting down a bigger security deposit, but it will be cheaper than court. If you need some help negotiating, try a community mediation center or the local humane society, which may provide mediators specifically for landlord-tenant disputes about pets. The San Francisco SPCA, for example, provides this service as part of its "Open Door" program.
Adding a No-Pets Clause to a Lease
Even though landlords may refuse to rent to someone with a pet, it's harder for a landlord to change the rules if a tenant already has a pet. The landlord's legal right to change the terms of the tenancy usually depends on whether you signed a rental agreement or a lease.
- A lease lasts for a specified time. Neither the landlord nor tenant can unilaterally change its terms while it is in effect. When the lease comes up for renewal, generally a landlord is free to change its terms. (But, as discussed below, a landlord who hasn't objected to a dog for a long time may have lost the chance.)
- A rental agreement is open-ended. Commonly, it runs from month to month, and allows the landlord to change the terms of the rental agreement with 30 days' notice to the tenant. Local rent control ordinances, or the rental agreement itself, may limit the landlord's right to make such changes.
Some special local rules may apply, however. Some cities, recognizing that adding a no-pets provision is often just a way to get rid of a tenant for another reason, have restricted the practice. Check your local ordinances or call the city to find out.
Enforcing a No-Pets Clause After Allowing a Dog
A landlord who doesn't object to a tenant's pet for several months or years may lose the right to enforce a written no-pets clause. By not acting promptly, the landlord waives the right to object. (Some landlords get around this rule by including a clause in the lease saying that a landlord who fails to enforce a lease clause when it's first violated can still enforce it later.)
How long a landlord can wait to enforce depends on the circumstances. A few days isn't too long, as an Indiana tenant found out when his landlord told him to get rid of a cat three days after he moved in. But a tenant who has had a pet for several months or a year may have a strong legal argument for getting to keep it. For example, a New York court ruled that tenants who kept a dog for six years could not be evicted under their lease's no-pets clause. It may be enough, by the way, that the landlord's agent—the apartment manager, if there is one—knows of the pet.
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 (again, of course, unless the pet is a nuisance). The ordinance mentions only leases; it doesn't say whether or not a landlord who has allowed a pet can add a no-pets clause to a month-to-month rental agreement.
Separate Agreement With the Landlord
What if a landlord or manager tells you it's all right to move in with a pet, even though the standard printed lease you sign says no pets are allowed? If you relied on the landlord's promise that it was all right to have a dog (acquired a dog, or moved into the apartment just because dogs were allowed there), a court might rule that the landlord could not later try to get out of the agreement. In the end, it comes down to basic fairness.
For example, a New Jersey court ruled that tenants who had kept a dog for more than ten years could not be kicked out of their apartment because they refused to accept a no-pets clause when they renewed the lease. The apartment manager had told the tenants that they could have a dog because they were such good tenants. The court found that because the tenants had relied on that promise, buying and becoming attached to a purebred dog, they should not have to get rid of their pet "on the basis of a landlord's whim or caprice." (Royal Associates v. Concannon, 490 A.2d 357 (N.J. Super. 1985).)
Tenants With Special Needs
Trained assistance dogs are allowed in rental housing. But even a tenant who does not require a dog to help with everyday chores may have a special need for a dog, and that need may prevail over a landlord's wish to enforce a no-pets clause. A tenant may, for example, have a particular emotional need for the psychological comfort that having a dog gives.
The law may recognize this. California law, for example, requires landlords to make "reasonable accommodations" if they're necessary to let someone with a disability use and enjoy a dwelling. A California couple who suffered from severe depression asked their homeowners' association for permission to keep a small dog in their condo. According to doctors' testimony, the dog had a marked therapeutic effect, especially for the husband, who had been permanently injured in a serious car accident. The association refused, but the state's Fair Employment and Housing Commission ruled that keeping the dog was a reasonable accommodation, and a state court affirmed that decision. (Auburn Hills Homeowners Ass’n v. Elebiari, 18 Cal. Rptr. 3d 669 (2004).)
In a similar New York case, however, a court reached the opposite conclusion. In that case, a therapist had recommended a dog for a depressed nine-year-old. Her mother bought the girl a dog and noted immediate improvement in her daughter. The court ruled that having the dog wasn't a reasonable accommodation required for the girl to use and enjoy the apartment. (“Dog-as-Therapy Argument Doesn’t Sit Well With Judge,” New York Law Journal, Nov. 18, 2004.) A judge may also base a decision on general principles of fairness rather than on specific laws. A court might consider:
Emotional attachment. When weighing a landlord's claim against a pet owner's, courts increasingly listen to expert testimony about the emotional and psychological value of pets. In New Jersey, which requires changes in leases to be "reasonable," a court ruled, after hearing testimony from psychologists, that enforcing a no-pets clause would be unreasonable when the tenants would suffer significant health problems if they lost their pets. (Young v. Savinon, 492 A.2d 385 (N.J. Super. 1985).)
Protection. A tenant who can prove that a dog is necessary for personal safety and peace of mind may be able to override a no-pets restriction. Evidence of a well-founded fear of crime is a history of crime in the neighborhood, drug deals in the building, or break-ins. If the dog is not a nuisance, the tenant will probably at least get a chance to argue that the no-pets clause is unreasonable and shouldn't be enforced.