What if, despite your rental lease having a no-pets clause, you have pets? What if management knew that you had pets but never enforced the no-pets clause? What if management suddenly decided to enforce the no-pets clause? What if the former manager who said you could have your pet has been replaced with a new manager who says your pet must go?
Many pet owners panic, and rightly so, when they find a notice from their housing manager, owner, or board association, advising them that they must give up their pet or face eviction or other legal action.
If you're renting a privately owned apartment with a no-pets clause, you may be out of luck. However, some states and local jurisdictions have laws that protect residents. In New York City, neither landlords nor co-op boards can enforce a no-pets rule if the resident has lived openly with an animal for at least three months. This means that agents of management may have entered the apartment to do repairs or have seen you come and go with your pet. This rule does not apply once the lease has expired or for any subsequent pets. Virginia law states that a landlord cannot "work a substantial modification" of the lease agreement unless the resident agrees to it in writing.
If you live in privately owned rental housing, please don't sneak in a pet. This makes it even harder for responsible pet owners to find animal-friendly housing. Even if pets are allowed where you presently live, it's best to inform the housing manager of your intention to adopt a pet before you do so.
If pets are not allowed and you can convince your housing manager that you will be a responsible pet owner, be sure that both of you amend the rental lease to allow your pet and be sure to keep a copy of this important document. It is not uncommon for current or new management to change the pet-keeping rule and, without legal documentation, you jeopardize your ability to keep your pet. With a legal document, even if the rule changes, the pet covered by your rental agreement has the right to be "grandfathered" in. However, once you no longer have that pet, management has the right to apply the new no-pets rule.
In most states, any pet restrictions at a condominium must be adopted by amending the by-laws, which usually requires a vote by a supermajority of unit owners. A rule passed by the board alone typically will be ineffective. While a no-pets amendment passed by the unit owners generally will be enforceable against future owners, state laws differ as to whether the amendment is enforceable against current owners and pets. A majority of states have a rule that the amendment will be enforceable if the condominium owner knew that the pet rule could be changed or amended when the owner bought the condominium. In a few states, the amendment will not be enforced against owners who bought their condominium when pets were allowed. In general, condominium boards are advised by counsel to "grandfather" current pets but to provide that they cannot be replaced once a no-pets rule is adopted.
However, if you live with a pet in a condominium with a no-pets rule that has been ignored but is now to be enforced, you could be in trouble. All that's required is that you had notice of the no-pets rule, which would be published in the homeowners' association rules, and notice that it was going to be enforced. That will likely be sufficient to permit your association to get around the legal doctrine of estoppel.
Whether you own a condominium or rent an apartment, your neighborhood librarian may be able to help you learn about landlord-tenant law in your state and how the doctrine of estoppel is handled. Estoppel is a legal context that means if your manager, landlord, or homeowners' association had knowledge of your pet and failed to make a claim against you for your pet, they may not be able to make such a claim at a later date. The earlier failure to make a claim is deemed to be implicit approval.
Estoppel may also apply if you were given explicit written permission in your lease to have a pet and the landlord later changed his or her mind. If you weren't given explicit approval, management can usually get around estoppel by saying that you had notice of the rule in your lease and were given notice that the rule would be enforced.
While at your local library, be sure to ask for the annotated version of your state or local laws in order to find out if they include a bill of rights for condominium owners and how they address the doctrines of estoppel, waiver, and selective enforcement.
If you decide to hire an attorney, look for one with experience in fair housing. Seek one who has handled this issue before, and who will keep you informed of your progress. If you cannot find an attorney through personal contacts, you may contact: 1) the American Bar Association. Its website features a lawyer locator and links to states that offer free programs; 2) PrairieLaw provides online message boards and chat rooms on a variety of legal topics; 3) the Animal Legal Defense Fund (ALDF) maintains a list of animal friendly attorneys around the country. Contact ALDF at 707-769-7771 or visit its website; and 4) check the phone book's Blue Pages under "Legal Services" or "Housing." Some counties and cities have their own lawyer locator services as well as legal aid programs for low-income clients.
Seek all the resources you can in order to keep your pet. After all, it's worth it, isn't it?
Thanks to the Doris Day Animal League for allowing us to borrow generously from its Best Friends for Life
booklet for this article.
