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:
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.
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.
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.
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.
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).)
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.