Landlord Claims Policy Barring Cats, Then Allows a Feline In

Robert S. Griswold | Steven R. Kellman | Ted Smith
18-May-2003 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on News Radio 600 KOGO, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: When I moved in, I asked the landlord about having a cat as I noticed many cats about the premises. He said he decided to exclude them after the current cat owners moved in and that once these people moved out or their pets died there would be no more pets.

But someone who just moved in has a cat. They said my landlord allowed the cat because it was 9 years old and he had owned it for so long. How does this affect my landlord's no-cats policy?

The new tenant had to pay a stiff deposit for the cat, but I would be willing to do this, also. Do I have a legitimate cause to have a cat as he allowed one in in spite of his previous policy?

ANSWER: Tenants' attorney Kellman: Pet policies may be set by the landlord but must be applied equally to all residents. It is arbitrary and therefore improper to allow a pet cat for one tenant and not other tenants. If your landlord has enacted a phasing out of pet cats policy, it must be adhered to for all residents, including the new one with the 9-year-old cat. By allowing a pet cat to be moved in, your landlord may be waiving the no-pet-cat policy that would force him to allow other residents to get a pet cat also.

I specifically referred to the cat as a pet since different rules apply for companion animals that are therapeutically necessary for a person suffering from a recognized medical (i.e. depression, etc.) condition. If a cat (or dog) is medically necessary for the treatment of a medical condition, the no-pet policy may not apply since the animal would be considered more of a medical device than a pet.

Landlords' attorney Smith: I think Mr. Kellman is stretching it a little bit here since he assumes some facts that the reader has not given us. Let me assure you that, as the landlord's attorney, it is still legal to have a no-pet policy in apartment buildings and other rentals. Exceptions have chipped away at this, but the basic rule remains the same.

Exceptions for seeing-eye, hearing-impaired and companion animals are well settled. In your case, the landlord has chosen a policy of select pets. This is legal.

I disagree with Mr. Kellman when he suggests that the change in cat policy is discriminatory. In fact, the new policy that favors one cat owner over another is not discriminatory. I do prefer my landlord clients to stay consistent with their policies, including those regarding pets. Still, there is nothing illegal about going from a pet to no-pet building.

Rental conditions, and therefore standards on admission of pets, can vary with the market. The landlord has decided to allow the pets that pre-existed to be grandfathered in. As those tenants move out, the replacement tenants will not be entitled to have pets.

The transition policies are legal so long as they do not violate fair housing against a protected class. There are no facts to suggest that the reader falls within the settled exceptions. Therefore, the landlord was well within his rights not to allow your cat or impose conditions on its admission.

No limit on lease

Question: We were told by the property manager at a local rental property that a law exists that states the longest apartment lease that can be written is for 12 months. We wanted a 24-month lease. Is 12 months the longest lease term a landlord can write?

Landlords' attorney Smith: There is no upper limit on the length of time for which a landlord may lease residential property. The general rule of thumb is 12 months. I've seen cases of 24- and 36- month and five-year residential leases. That's rare but it's possible.

Any lease beyond one year must be in writing according to the statute of frauds. Your landlord is not legally required to do a 24- month lease but maybe you can talk him into it if you are prepared to lock yourself into that type of commitment.

Termination fee

Question: I'll able to buy a condo if I can just get out of the balance of my long-term apartment lease, which states that if I terminate early I must pay the balance of rent due through my actual move-out date plus an early termination fee equal to one month's rent. Is there any way of getting out of this or at least reducing some of this cost?

There's a waiting list for apartments in the complex so it should be rented quickly. Also, I plan on cleaning the apartment so that it can be rented right away.

Property Manager Griswold: Since you have no legal grounds to prematurely terminate your lease, the liquidated damages clause is actually a good option. The law says that you are responsible for the entire balance of the lease period or until the rental unit is rerented.

While the landlord must make an effort to rerent your unit, he does not have to go to great lengths to put a priority on renting your unit vs. other currently vacant units or others on notice.

Also, even if there is a waiting list it can easily take several days to prepare the rental unit for a new move-in and additional time to actually get a new tenant approved and scheduled for move- in. While a waiting list sounds promising, it is my experience that waiting lists often contain names of people who are not interested in your particular unit (wrong size, wrong location, etc.) or have already found alternative housing.

Further, these individuals must be financially qualified and meet all other screening criteria. In short, I think that the 30-day early termination fee is your best bet and avoids the uncertainty and risk of potentially being on the hook for several months of rent.

You are always wise to leave the apartment in rent-ready condition even if you will be paying the early termination fee since your security deposit is still subject to legally permitted deductions.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2003 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com