As all pet-owning tenants know, most leases and rental agreements contain no-pets clauses. Such provisions are legal everywhere, and, when a tenant violates a no-pets clause, landlords may terminate the tenancy. Most courts will order an eviction when a tenant who violates the clause refuses to move out or get rid of the pet.
In the following situations, however, landlords might not be successful in enforcing a no-pets clause.
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 landlord who doesn't object to a tenant's pet for several months or years might lose the right to enforce a written no-pets clause: A court could decide that by not acting promptly, the landlord waived the right to object. (Be aware, however, that some leases contain a “no-waiver clause,” in which landlords reserve their right to enforce a term of the lease at any time—even when they haven’t enforced it in the past. Courts don’t have to enforce a no-waiver clause, but having one in the lease might boost a landlord’s position.)
How long landlords can wait without effectively waiving their right to enforce depends on the circumstances. Courts have held that a few days’ delay isn’t too long. But a tenant who has had a pet for several months or a year might have a strong legal argument for getting to keep it. Also, local law might impose a timeframe on how long landlords have to take action—for example, in New York City, a landlord has three months after finding out about a tenant's pet to start enforcing a no-pets clause. If the clause isn't enforced during that period, the landlord loses the right to enforce it (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 enforce a no-pets clause in 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 lease you signed says no pets are allowed? If you relied on the landlord's promise that it was okay—perhaps by acquiring a dog, or choosing the apartment because you could bring your cat—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).)
Service animals are allowed in rental housing, regardless of a no-pet policy. A service animal is one that is trained to perform a task directly related to the person’s disability. Federal law states that dogs and miniature horses can be service animals. Examples of service dogs include guide dogs, hearing dogs, psychiatric service dogs, and seizure response dogs.
But even tenants who don’t require a service animal might have a special need for an emotional support and comfort or companion animal (an “ESA”). In some situations, the tenant’s need might prevail over a landlord's wish to enforce a no-pets clause. If the tenant is a person with a disability, and the ESA provides assistance that enables the tenant to live safely and equally in the rental, the landlord might have to make reasonable accommodations for the tenant and allow the ESA despite a no-pets policy. Each situation is unique, though, and landlords are allowed to put reasonable conditions on their approval of an ESA. For example, a landlord may decline to allow a noisy parrot on the grounds it disturbs other tenants, but might not be able to decline a miniature pig without good reason.
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, try to work things out. You might 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 might provide mediators specifically for landlord-tenant disputes about pets. If negotiations seem pointless or you’re unsure whether you’re in violation of a no-pets policy, consider contacting a local landlord-tenant attorney to discuss your situation.