Man's best friend may not be a landlord's best friend 6/28/12

Are "no pet clauses" legal and enforceable? With some exceptions, landlords have an absolute right to refuse to rent to tenants with pets. Landlords who are willing to accept pets can take several steps to attempt to protect them from the additional costs and risks of allowing pets.

Some years ago, I was contacted by a landlord to assist him evict his longtime, rent-paying tenant from a luxury duplex condominium apartment in a fashionable part of town.

Why would a rational landlord do such a thing? Well, the tenant had recently inherited a number of prized cats and significant funds for their care from a deceased family member. The problem was that both the condominium house rules and the apartment lease prohibited tenants from housing pets on the premises. Despite months of red tape, no fewer than four visits to court and tens of thousands of dollars in legal fees, the D.C. Superior Court Landlord Tenant Division ordered the eviction and the marshal in the District scheduled the eviction. The judge ruled that the eviction was proper and legally justified since the tenant had breached the lease and house rules that specifically prohibited pets. Since pet ownership was not a protected class under any local or federal law, the tenant had no right to remain on the premises. While all parties were sympathetic to the tenant's desire to carry out his relative's final wishes and care for the cats, he simply could not do so in this apartment.

There are several reasons landlords may be reluctant to allow pets. One obvious reason is the additional wear and tear that an animal can inflict on a home. That wear and tear can come from paws and claws on floors, doors, screens and furnishings. Cats and certain dogs shed their fur and dander - thus, more floor and air duct cleaning is required. Accidental damage occurs from animal feces, urine or when a wagging tail knocks over and breaks the landlord's art or furnishings. There is always the risk that animals will bring fleas, ticks or vermin into the unit, which can be difficult and expensive to eradicate.

Finally, landlords are regularly sued by their tenant's dog bite victims. Most of the time, landlords are found not liable, but defending these cases - with all the hassles, costs and risks of losing - outweighs any possible benefit of allowing pets. Landlords have been held liable for tenant's dog bites when they exercised dominion and control over the area where the dog bite occurred, such as a common area. Landlords have also been held liable when they actually knew that the tenant's dog had dangerous propensities and took no steps to eliminate that dangerous animal.

So, if you're an animal-loving landlord, how can you allow pets while still protecting your investment? You can:

●Increase the rent to cover the additional costs of allowing pets.

●Increase your security deposit to the maximum allowable under local law. The District and Maryland, for example, cap security deposits at amounts equal to one month's rent.

●Require the tenant to have the rental unit professionally cleaned and treated for fleas, ticks and vermin.

●Insert a lease clause that requires the tenant to maintain his own liability insurance to cover the risks of a dog bite.

●Contact your insurance agent to buy or confirm that your existing liability umbrella policy covers the risk of your tenant's dog bite.

●Restrict the number and size of the permitted animals.

●Require the tenant to provide you with evidence of current vaccinations for all animals that will be permitted on the premises.

●Have the tenant indemnify you in the lease for any claims brought by third parties resulting from his or her animal. That indemnification should include, but not be limited to, fines or penalties from the homeowner's or condominium association.

For single-family home tenancies, tenants are typically not legally responsible when trees, shrubs, bushes and the like die during the term of the lease. Even if the tenant's dog digs up your prize Japanese maple tree in the front lawn, you may not be able to deduct that from his or her security deposit. Thus, the best approach is to insert lease provisions that make the tenant legally liable to maintain the landscaping and require the tenant to hire an acceptable, professional landscaper. The landscape contract should be paid in advance or automatically charged to the tenant's credit card each month and should contain a notice provision that alerts you if the contract is ever suspended.

There is one exception for landlords in Maryland: If the pet is a service animal - a guide dog, signal dog or other animal used help individuals with a disability - landlords cannot refuse to rent on that basis nor charge extra rent. Violators of the law may be guilty of a misdemeanor, and if convicted, may face a $500 fine. The law, however, does not require a landlord to modify his property or provide a higher degree of care for a blind or visually impaired tenant than for a tenant without those disabilities. The law holds the tenant liable for all damage attributable to the service animal.

Landlords who rent out only one room in their home are exempt from these laws.

Harvey S. Jacobs is a real estate lawyer in the Rockville office of Joseph, Greenwald & Laake. He is an active real estate investor, developer, landlord and lender. This column is not legal advice and should not be acted upon without obtaining legal counsel.