Question: Is it legally binding to state in a lease that an existing pet is agreed to but that no more are permitted and when the said pet dies it can’t be replaced? I am buying a duplex and one tenant has two cats and a bird. I have seen what damage cats can do when they decide to stop using the litter box. I want this building to be a “no-pets” property. I would not be so cruel as to tell her to get rid of her cats, and as for now, the apartment is clean and smell-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 anyway. I just wonder if this arrangement can be binding and cause for eviction if not abided by. This tenant really wants to stay and we’d like to keep her, but I don’t want any more animals.

Landlord attorney James McKinley replies:

A “no-pets” policy is certainly enforceable with a few exceptions. For instance, a landlord may not refuse to permit an individual that is blind from keeping a guide dog; an individual that is deaf from keeping a signal dog; or an individual that is disabled from keeping a service dog. Also, there have been a few cases that found it was illegal discrimination under the Americans with Disabilities Act to evict or refuse to rent to someone who is mentally disabled and who 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 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 you pet policy could be evicted after notice of the violation and time to cure the violation.

Tenant attorney Steven Kellman replies:

Pets are personal property and the ability to have them living at the 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 to disabled persons, and that means allowing service animals to be kept at the rental whether you have a “no-pets” policy or not.

Even though service animals are not pets, they may still be regulated by the landlord as long as those rules are reasonable and not so restrictive so as to unfairly impair the tenant’s ability to keep that animal. For example, a service dog is fine, but one that barks all night for no reason or one that tears up the landscaping digging for buried doggy treasure 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 waived (i.e. voided) if you fail to enforce it. If you make a “no-pets” policy, then you must serve written notices to that effect on existing month-to-month tenancies, and when leases expire you need to put that new policy in any lease renewal. Failure to adhere to these legal guidelines may result in tenant’s defiance of your rules or maybe even a discrimination claim.

Question: We have a 12-month lease on a home that has six months remaining. Our landlord sold 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, and you and the new owner must honor the complete terms and conditions unless you mutually agree to a change in terms or 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, 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 James McKinley, principal in a law firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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