How to Tighten Your Pet Policy Humanely

By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, December 15, 2007

Q. Is it legally binding to state in a lease that an existing pet is allowed but that no more are permitted and that when the pet dies, it can't be replaced? I am buying a duplex, and one tenant has two cats and a bird. I have seen the damage cats can do when they stop using the litter box. I want this building to be a no-pets property, but I would not be so cruel as to tell the tenant to get rid of her cats. For now, the apartment is clean and cat-odor-free.

I had this agreement in a lease on a property some years back. The tenant claimed amnesia and replaced her dead cat with a new kitten. Can this arrangement be binding and cause for eviction? My current tenant wants to stay, and I would like to keep her, but I don't want any more animals.

A. Landlords' lawyer James McKinley replies:

A no-pets policy is enforceable with a few exceptions. For instance, a landlord may not refuse to permit a person who is blind from keeping a guide dog, a person who is deaf from keeping a signal dog or a person with a disability from keeping a service dog.

A few cases have found that it was illegal under the Americans with Disabilities Act to evict or refuse to rent to someone who is mentally disabled and kept pets for companionship, even though those pets were not certified service animals.

Aside from those exceptions, you clearly have the right to implement a no-pets policy, either through serving a notice of change of terms of tenancy or by asking your tenants to sign a new agreement with a no-pets policy. It would be reasonable to allow existing tenants with pets to keep those pets and to not allow them to replace them with new animals. Anyone in violation of your pet policy could be evicted after notice of the violation and time to address the violation.

Tenants' lawyer Steven Kellman replies:

Pets are personal property, and the ability to have them at a rental unit is up to the landlord (except in mobile-home parks where tenants are entitled to have a pet).

As James points out, service animals are not "pets" and therefore cannot be barred from living at the rental as if they were pets. The law requires landlords to make reasonable accommodations for disabled people, and that means allowing service animals whether or not the landlord has a no-pets policy.

Even though service animals are not pets, they may still be regulated by the landlord as long as the rules are reasonable and not so restrictive that they unfairly impair the tenant's ability to keep the animal. For example, a service dog is fine, but one that barks all night or tears up the landscaping is not.

Keep in mind that whatever pet or animal policy you make must be applied to all tenants equally. You cannot show favoritism to one resident over another.

Also, whatever policy you make will be weakened or even voided if you fail to enforce it. If you make a no-pets policy, you must serve written notices to that effect on existing month-to-month tenancies. When leases expire, you need to put the new policy in any lease renewal. Failure to adhere to these guidelines may result in a tenant defying your rules or maybe even a discrimination claim.

We have a 12-month lease on a home. There are six months remaining. Our landlord sold the house last month, and we were advised in writing that our deposit was transferred to the new owner. Is our original lease still valid? Can we or the new owner cancel the lease?

Property manager Griswold replies:

Your lease is still valid. You and the new owner must honor the terms and conditions unless you mutually agree to a change in terms or to a new lease. The transfer of your security deposit was properly documented in writing. The new owner will be responsible for the required accounting upon your vacating the premises and the return of any remaining balance of funds.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenants Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords. E-mail your questions to Griswold Questions should be brief and cannot be answered individually.

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