Question: I recently received a little dog for my birthday. I took the dog with no worries, thinking it was OK since my apartment neighbor has two small dogs and also breeds them and sometimes has four or more dogs for several months. Those dogs bark and follow you every time you walk by. My dog is always on a leash and never barks when someone walks by. Now, the owner wants me to get rid of my dog. I never realized there was a “no pets” line in our lease. When I spoke to the landlord about it, she said that the tenant with the dogs moved in a while ago when there was a different owner so his lease is different from my lease. Is that fair to other tenants not to be able to have pets when another tenant breeds dogs in his apartment? Can tenants have different rules on pets?
Tenants’ attorney Kellman replies:
A landlord is allowed to put language in the lease that limits or prohibits the keeping of pets. Although pet owners do not enjoy special protection (such as for race or religion etc.), the law does prohibit arbitrary and capricious discrimination against tenants for most any reason. Here, the old leases differ from the new ones in that the new ones prohibit pets, while the old ones do not. If the landlord has made a business decision to limit pets, it is reasonable to phase out the old leases and replace them with new ones, thus employing a new no-pet rule. The landlord must be vigilant and be sure to change each old lease as it expires. If the old leases are month to month, they should be all changed at pretty much the same time with the proper legal notice. Tenants who keep animals for medical service reasons (i.e. a visual guide dog) are not subject to a no-pet rule because service animals are not “pets.” Tenants can still object to a change in the pet policy based on any representations made to them by the landlord about allowing pets as inducements to move into or to stay at the apartments rather than live somewhere else.
Question: We are new landlords and are in the process of buying our first rental home. The close of escrow will be in the next few weeks. The contract states that all permanent fixtures will stay in the rental property, but we just received a phone call directly from the seller asking us if we want to buy the gas range and the dishwasher for $750. Aren’t these permanent fixtures that would be included in the sale?
Property Manager Griswold replies:
First, I would carefully review the specific language of the purchase and sale contract to see if there are any specific clauses that cover these two items. If not, then often the interpretation of “fixtures” is a matter of local custom and practice. Generally, a dishwasher that is built-in and installed under the counter as opposed to a freestanding portable unit would be considered a fixture and go with the sale. On occasion you will find that older rental homes did not have dishwashers at the time of construction and a portable unit was provided, but I cannot remember ever personally observing a rental home where the stove was not a built-in fixture. It is also quite unusual for the seller to contact you directly so I think he/she is trying to pull a fast one. I suggest that you seek the feedback of your local real estate agent for his/her experience. I would then also contact some other real estate brokers to see if the opinion is universal. Assuming they agree that the dishwasher and gas range are fixtures, these appliances should be included in the sale. I would suggest you immediately document your position in writing that these items are included in the sale and ask escrow to include a specific instruction signed by both the buyer and the seller. It sounds like the seller may be trying to take advantage of you, as you are first-time real estate investors. Of course, if the seller had gone through your real estate broker initially instead of directly to you, he/she would have thwarted such an attempt immediately.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.
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