Rules for charging 'pet rent'

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Inman Connect New York | January 29 - February 1, 2019

Q: I’m interested in a rental that describes the rent in an odd way: First, the advertisement lists the rent, then it adds "pet rent." Is this legal? –Rigoberto R.

A: It’s perfectly OK for an ad to specify that if a tenant has a pet, the rent will be a certain amount more than the stated rent (unless, of course, the property is subject to local rent control, as explained below). The rent is the rent, whether the landlord chops it up into little pieces ($200 for the ceiling fan, $100 for keeping a dog, etc., for a total of "X" dollars in rent), or simply announces one flat sum. That said, a few things need to be kept in mind:

1. Charging separately and willing to omit an essential service or aspect of the rental. As most landlords know, they must offer fit and habitable premises, which includes basic things such as working plumbing, heat, weatherproofing, and so on. Most landlords would never consider this — but don’t put it past the regrettable few who might offer a "working kitchen" for a separate sum, and be willing to accept a tenant’s "No, thanks, I’ll skip the kitchen." In virtually every rental situation, a fit and habitable rental must include a functioning kitchen sink, and the law will not allow a landlord to get out of that obligation by offering an "optional" sink, available only if the tenant pays more rent.

2. When the "pet" is alleged to be a service animal. Once the tenant utters the words "service animal," everything changes. It’s against the law (federal and state) to charge more for a service animal (an animal specially trained to assist a person with a disability). How to confirm that the animal is indeed a "service animal" is another question entirely.

3. Misleading advertising. It’s very risky business to advertise a rental as pet-friendly, state the rent in the ad, then inform inquiring tenants that the rent will be more than the ad indicated if they have a pet. Doing so may constitute false and deceptive advertising. It’s best to state from the beginning, in all ads and conversations, that the rent will be a certain amount more if the tenant has a pet approved by the landlord.

This last caveat — that landlords must approve of the pet — is crucial. It’s dangerous to imply that any tenant who’s willing to pay the extra rent can bring any pet he chooses. Careful landlords screen those pets!

4. Rent control. Landlords subject to rent control cannot tack on "pet rent" if that would put the total rent over the legal maximum allowed by the rent control ordinance. …CONTINUED

5. Pet deposits. Some landlords charge not only pet rent, but also a separate pet deposit. This is legal as long as the total deposit is at or below the legal maximum (assuming your state has one). However, it’s a bad idea, from a practical point of view, to segregate the deposits. Here’s why: After specifying that the pet deposit will cover damage caused by the pet, the landlord may not be able to use that money for anything else.

But what if the pet is better behaved than the owner? The landlord could end up having to refund the entire pet deposit because the pet caused no damage, even though the remaining deposit won’t cover the cost of repairing damage caused by a careless human tenant. It’s better to charge the legal maximum (or as close to that as the market will bear) and have the entire pot of money available for cleaning and repairs, no matter who soiled the carpet.

Q: One of my tenants has a broken leg and is using a wheelchair. He wants to install a ramp to his apartment (there’s a set of steps to the front door). I have a vacant unit that has no steps, which would solve the problem. Can I insist that he move to the other unit, which is identical except in this one respect? Can I require that he remove the ramp when he leaves? And, he’ll be out of that wheelchair in a matter of a couple of months — is he even disabled? –Tom S.

A: Your last question is where we should start: Does a temporary condition qualify as a disability? This question has been answered in the employment context, at least. According to the technical assistance manual prepared by the Equal Employment Opportunity Commission (the rules for employers and landlords are often identical), you’d have to look "at the extent, duration and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and that have little or no long-term impact usually are not disabilities.

For example: Broken limbs, sprains, concussions, appendicitis, common colds or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability. However, if a broken leg took significantly longer than the normal healing period to heal, and during this period the individual could not walk, he or she would be considered to have a disability.

Or if the leg did not heal properly and resulted in a permanent impairment that significantly restricted walking or other major life activities, he or she would be considered to have a disability. (See: The Americans With Disabilities Act Title I Technical Assistance Manual, Section 2.2(a)(iii).)

Let’s apply that rule to you and your tenant. You’ve said that he’ll be out of his wheelchair within a few months, implying that he is healing normally. If that’s so, his broken leg does not meet the definition of a disability, and you are not required to allow him to install that ramp, nor are you required to offer another rental. But if his healing takes longer, he may have a disability. If that happens, read on.

A tenant who uses a wheelchair and asks to install a ramp to the front door has made a reasonable request, which you may not refuse unless it poses an undue burden on your business or property. For example, it’s easy to install a ramp when you’re dealing with two steps in a wide walkway; but if the "set of steps" consisted of several steep flights, a ramp probably would not be a reasonable solution.

Nor can you insist instead that he move to an accessible unit. As to removing the ramp when he leaves, under the Fair Housing Act, housing providers may require tenants to restore modifications at the end of their tenancy only when they’ve been made to the interior of the dwelling.

(And even then, it’s unreasonable to demand restoration when the modification would not lower the value of the rental or pose a problem for succeeding tenants.) Reasonable modifications like ramps to the front door or modifications made to laundry rooms or building entrances need not be restored.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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