Avoid Premises Liability by Enforcing "No-Pets" Policy

Concerns over property damage and dog bite injuries may lead some owners to ban pets from a site altogether. Yet some residents may keep pets despite the ban. If you find that a resident has a pet, how you address this lease violation can determine whether you’ll be held liable if the pet injures someone. In a typical lawsuit involving a resident’s pet—called a “premises liability” lawsuit—the owner is sued because the resident’s pet attacked an individual.

Owner Liability Basics

Typically, a court may order an owner to pay damages to people injured by a resident’s pet in the resident’s unit or somewhere else on the property if:

• The owner knew the pet was vicious or dangerous; and
• Despite this knowledge, the owner did nothing to protect others against the danger.

Actual knowledge. To be liable, the owner would have to know that there’s a pet on the premises and have “actual knowledge” of the pet’s propensity to cause injuries. Theoretically, the owner would have to know about at least one incident of the pet’s dangerous propensity. But if the animal was inherently dangerous—such as a snake or a dangerous breed of dog—the court, in determining the owner’s liability, would not require that the owner be aware that the pet had attacked or threatened someone before. The same is true for breeds of animals that are prohibited by local ordinance.

For example, in Columbus, Ohio, pit bulls are prohibited. Suppose a Columbus owner or his maintenance staff discovers that there’s a pit bull in the building. Even if it’s caged, a court could view this as knowledge of an inherently dangerous animal on the premises. And if that animal injured somebody, the owner could be responsible.

Duty to protect. An owner who has actual knowledge of a dog or any other pet’s propensity to bite or otherwise injure people can be liable to the people who are reasonably entitled to expect protection. These would include other residents, residents' guests, contractors, and site employees.

Also, if a resident signs a lease expecting a prohibition against pets, then the owner may have a greater duty to protect that resident from pets on the premises, even if the owner doesn’t have knowledge that the pet has a propensity to attack. That’s because a resident of a building that bans pets would not take precautions to avoid being bitten by a neighbor’s pet, because there aren’t supposed to be any pets.

Risk of Permitting Lease Violations

When faced with residents who violate no-pets rules, some owners may ignore the situation for a long time, and then try to enforce it later if a conflict occurs over some other matter. This could backfire.

By permitting this lease violation, the owner is opening himself up for liability and management problems in the future. In general, if you know a resident has breached the lease by keeping a pet and do nothing about it for a long time, you risk having legally waived your right to object.

When an owner allows one resident to have a pet and tries to evict another for having a pet in violation of the lease, the violating resident will argue that the owner is selectively enforcing the lease. This weakens the owner’s ability to evict the resident and may expose the owner to liability: The resident may claim that the eviction isn’t really based on the pet, but on some other discriminatory basis.

You should adopt a policy you plan to stick to, and then preserve your right to enforce it by promptly giving any offending resident an informal written notice to get rid of the animal. If this doesn’t solve the problem, follow through with a termination notice, subject to any local law requirements.

Adopt Site Rule Banning Temporary Pets

The possibility of injury at an apartment building isn’t limited to attacks from residents’ pets. Residents may have guests who bring pets on the premises, or a resident may temporarily pet-sit for a friend.

If an owner wants to ban pets, Ohio attorney James Bownas recommends putting the prohibition in the lease and expanding the prohibition’s definition in the site rules. “It should be clear to the residents that a ‘no-pets’ clause does not apply only to buying a pet for permanent companionship, but also to even a fleeting presence of pets on the property,” says Bownas. For example, your clause might read:

No animal, such as a dog, bird, or other pet, will be kept on the premises, even temporarily, except for properly trained service animals needed by blind, deaf, or disabled persons.

Require Maintenance Staff to Report Violations

Early detection of pets and other lease violations can prevent them from becoming major problems in the future. Since your maintenance staff is often inside units performing routine repairs, tell your staff to be on the lookout for pets and other lease violations.

Signs of unauthorized pets include water bowls on floors, pet food bags and cans, bones, pet toys, litter boxes, leashes, and cages. Other lease violations maintenance staff could report to you may include evidence of unauthorized occupants, unauthorized business use, and possible illegal drug-related activity.

It’s important to stress to your staff the importance of promptly reporting any signs of lease violations to you or the manager. In New York, for example, an owner waives the right to enforce a no-pets clause if he doesn’t commence eviction proceedings within three months of his knowledge of a pet’s presence in an apartment.

Make Exceptions for Service Animals

You generally can’t apply a no-pets policy to residents with service animals, because service animals are not considered “pets” under fair housing law. For example, under fair housing law, allowing a blind resident to keep a guide dog would be considered a reasonable accommodation for a resident with a disability.

However, fair housing law doesn’t require property owners to make unreasonable accommodations for residents’ disabilities. Therefore, if a resident’s service animal causes undue financial and administrative hardship, that accommodation is unreasonable, and you don’t have to allow the resident to keep the service animal.

For example, if a resident’s service animal barks all night, causing several neighbors either to insist that you relocate the resident or to threaten to move out of your site, you might be able to require the disabled resident to get rid of his service animal. But what’s reasonable and what isn’t will depend on the particular circumstances. Mishandling such situations could cost you, so consult your attorney when dealing with troublesome service animals.

Insider Source

James Bownas, Esq.: Lane Alton & Horst LLC, 2 Miranova Place, Columbus, OH 43017; www.lanealton.com.