Q: At my property, which is dog-friendly, I’ve got a really bad hygiene problem. Despite my best efforts to educate my tenants (and catch offenders), some tenants are not cleaning up after their dogs. I’ve read about a company that can trace dog (doo-doo) to the dog (and the owner) by matching the DNA sample to the dog, whose DNA it has already gathered using a cheek swab. However, it’s expensive, and I want to know if I can charge my tenants for it. –David R.

A: You’re referring to Poo Prints, a company that does just what you describe. The company’s website explains the service — and the cost. Landlords who have 20 or more dogs to swab at the same time pay about $30 per dog; single collections (for new tenants) run about $35. Collection kits cost $10, and a lab analysis is about $50.

Typically, landlords impose a "fine" on tenants whose dogs have been identified as the source (to be fair, it’s the humans who are the culprits!). Testimonials reveal that a $100 fine is not uncommon, and that once the program is in place, there are few violations — in other words, deterrence seems to work.

There are a few ways that you might pass on the costs of this service to your tenants. Let’s look at each of them separately.

Can I charge new tenants for the cost of the cheek swab?

In most states, you can legally tell prospective tenants that if they have or later obtain a dog, they will have to pay the cost of the cheek swab.

In a few states, however, you might have a problem. These are the states that forbid landlords from collecting "nonrefundable fees." California is one such state; it passed the law in response to some landlords’ schemes to get around the state’s limit on security deposits.

These landlords, not content with collecting the legal limit of two times the rent as a deposit, also collected a variety of creative fees, such as "key money," "application money," and even "tenant initiation money." Landlords never intended to refund these amounts; they simply became a way to squeeze more money out of the tenant.

Legislators put a stop to these practices by decreeing that any fee collected upfront that would be used to, among other things, remedy damage caused by the tenant, was part of the security deposit.

Henceforth, those fees had to be counted when determining whether the landlord had exceeded the legal limit, and they had to be refunded if the tenant left and there was no unpaid rent or damage to the unit.

Because state legislators used the expansive phrase "among other uses" when explaining how such fees were intended to be used, quite arguably a fee that allows landlords to determine the source of property damage (doggy doo-doo on the lawn) falls into the security deposit camp.

In California, at least (and perhaps also in Delaware, Hawaii, Montana and Oregon, which also ban nonrefundable fees), your "pet fee" would be legal only if you refund it when the tenant moves out (assuming no unpaid rent or damage) and only if the fee, plus the regular deposit, does not exceed the state’s deposit limit.

Can I charge current tenants for the cost of the cheek swab?

Let’s assume for now that in your state, you can impose the fee on a new tenant. But what about a current tenant? This question has a more universal answer: No.

These tenants already have leases and rental agreements, and you can’t vary the terms of the rental midlease unless both you and the tenant agree to it. The only way for a dog-owning tenant to avoid the fee would be to get rid of the dog, which is not a reasonable alternative.

So, I’d say that lease-holding tenants could legally refuse to pay the swab fee. If you have month-to-month tenants, you can vary the terms of their rental by giving proper notice, which is 30 days in most states. Your new terms could condition the right to keep a dog on paying the swab fee.

If I offer to pay for the cheek swab, but a tenant refuses to allow it, can I terminate the tenancy?

Here, you’d be demanding that the tenant do something (bring the dog in for a cheek swab) that was not a condition or term of the lease. For the same reason that you can’t impose a fee midlease without the consent of the tenant, you can’t make this demand until the lease is renegotiated or you’ve given proper notice to month-to-month tenants.

Can I charge offending owners for the cost of the collection kit and the lab analysis?

Dog poop on the lawn is property damage, which you can always charge for. You can charge for the time it takes your maintenance people to collect it, as well as the materials and analysis to trace it. That’s no different than charging a tenant for the cost of a broken window, when you learn (through time-consuming investigation) that it was caused by his ball-playing child.

Can I impose a fine on violators?

Here things get tricky. If you’ve been a steady reader of this column, you might guess what the problem is: Governments impose fines; businesspeople are entitled damages. And damages must reflect the injured party’s actual losses as closely as possible, which means they should be assessed after the damage has occurred.

Only in very limited circumstances will judges uphold a monetary consequence that’s set ahead of time, known as "liquidated damages." These clauses are upheld only when both parties have agreed ahead of time that it will be very difficult to measure damages that might occur in the future.

They must also agree that the liquidated damages figure they’ve agreed upon is a fair and accurate estimate of what those damages might be.

A consumer-imposed fine would fail as a liquidated damages provision. There has been no agreement between landlord and tenant that the loss to the landlord would be extremely hard to measure when the maintenance staff finds poop on the lawn.

And besides, those damages are not, in fact, hard to calculate. It’s the cost of the kit, the analysis and the staff time needed to deal with the problem. When there’s a violation, the landlord can easily tally up the numbers.

So to be safe, don’t impose "fines" on offending tenants. Simply add up the costs of addressing the incident, as explained above, and charge the tenant accordingly. This is no different than charging for staff time and materials needed to repair a broken window.

And when it comes to the cost of collecting the DNA in the cheek swab, take the high road and absorb the cost yourself. If, as seems to be the case, you’ll have a dramatic drop in cleanup operations, this expense will more than pay for itself quite shortly.

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