TOPIC FOR MAY'S ARTICLE:
Those Dog "Gone" Dog Problems:
Welcome to our new
page for Landlord-Tenant law questions. This month's article
pertains to the Dog Mauling case in San Francisco involving the two dogs named
Bane and Hera. As you undoubtedly remember these dogs viciously attacked and
ultimately killed Diane Whipple.
Since the verdict
in the criminal case came down, our site has been inundated with questions
concerning these types of animals. The reason for this influx of questions is
because the attack took place in an apartment complex. Many people, and not just
landlords, are concerned about these types of animals.
They have reason
to be concerned, because a civil case for wrongful death has been filed
against the two primary defendants and the landlord of the building where the
attack occurred. As a result many other
landlords are worried that they may be sued if someone is injured or killed by a
tenant who keeps a dangerous animal like Bane and Hera.
The Questions:
In the cases that I have heard about, no actual notice
to remove the dog has been formally served yet. Most landlords are quietly
asking the affected tenants to either dispose of dogs that they may have or move
out. Many people who have these dogs and have been asked to dispose of the dogs
or move are very upset. They are asking questions such as:
1. Do I have to
get rid of a dog that is a breed known to be vicious such as a Pit Bull,
Mastiff, Doberman or Rottweiller?
2. Do I have to
get rid of a dog that merely looks like a Pit Bull, Mastiff, Doberman, or
Rottweiller but
is actually a different breed?
3. Can the
Landlord do this? What if I have a:
a. Month to month tenancy;
b. A written lease.
4. What if the
rental agreement (oral or written) contains a no pet clause?
5. What if the
rental agreement (oral or written) allows me to have a pet?
These are all very
good questions that are all relevant to the problem currently facing landlords
and tenants.
The Reality of the Situation:
First of all let's examine the problem of the type of dog
that is involved. I truly believe that most responsible pet owners must
recognize by now that the legislature will eventually outlaw the ownership
of these types of breeds. The reason for this should be obvious that
these types of animals are not appropriate as pets. When the
legislature is apt to act is unknown to me. It could be a month, a year or even
never.
In the mean time,
you have to ask yourself if keeping this type of animal really makes good sense.
I realize that most owners of this type of dogs really believe that their animal
is no more dangerous than the cute little French Poodle that "playfully"
nips the mail carrier, children or other animals.
The reality is that both dogs are equally dangerous.
The
perception that the larger breed is "capable" of
inflicting more damage than the smaller breed, is totally correct and should not
be dismissed.
Anyone who owns
one of these animals must understand that the public views these animals as
virtual "land sharks." Especially when these
breeds have a history of unprovoked attacks on people and other animals. The
"perception of danger" is more important to the
public than the attachment their owners may have for the animal.
I think that it is
fair to say that the
public in general maintains an attitude that has been described as "NIMBY."
An acronym which stands
for "not in my back yard." They might not care as long
as the dog is living somewhere
else. Somewhere else being defined as not in their apartment complex or next to
their home. Especially if there are small children or other animals present.
An Obvious Outcome:
Each person who chooses to own such an animal, does
so at their own peril. If the animal attacks anything (a person or another
animal) a jury will probably award a larger award merely because of the breed of
the animal. No one is going to give the owner of such an animal any latitude
whatsoever. Owning an animal of this type would almost certainly subject you to
automatic guilt in the minds of a jury.
You may also face
criminal prosecution like the couple did in San Francisco. You should also take
note that they were both lawyers and were both convicted. You cannot dismiss the
obvious results so easily. You have to ask yourself if owning such an animal is
really worth the risks involved.
Especially since
it appears unlikely that insurance companies will continue to provide coverage
for these types of animals. If that happens, you may be unable to protect
yourself and your landlord if an incident happens. This really brings us to the
answers to this month's questions.
The Answers:
The Written Lease:
I used the plural
in addressing the word "answers" for a reason, there is more
than one answer. So let's examine some facts that many of our questioner's
overlooked. First of all, a tenant and a land owner do not have the same rights
to the use of land. A owner may use land in any way they see fit, so long as it
doesn't violate a statute.
A Tenant, on the
other hand, only has the use of the property and not an absolute ownership
interest. Their
use may be lawfully restricted by the landlord, who may lawfully place any
restriction on
the use of the property they see fit. The only limitations on the landlord's restrictions
on use are the obvious one's like
violating zoning laws, discriminations by virtue of age, sex, nationality or
race.
The Court is going
to uphold a "reasonable restriction" in a rental agreement. So if a rental
agreement has a "no pets" clause, and you have a pet, the landlord can legally
ask you to dispose of the pet or move. Although a landlord would probably have
to allow a tenant to have an assistive animal, such as a seeing eye dog. The
Court would have to look to the American's with Disabilities Act for the
definitive answer to that question. Although, I believe the answer is
obvious.
That part of the
question was relatively easy. Service of a 3-day notice to perform a covenant (no pets) or
move. If you don't move or dispose of the dog, they file an Unlawful Detainer
and get rid of you and the dog. Problem solved.
The Oral Agreement:
If you have an
oral agreement or a written agreement that doesn't contain a "no pets" clause,
the answer is not so easy. Many court's would allow the tenant to keep a
"reasonable pet," like a seeing eye dog, others might not.
Currently I am not aware of any legitimate organization currently training
Pit Bulls, Mastiffs, Dobermans or Rottweillers as assistive animals. If anyone
has information to the contrary, I would certainly love to hear about it.
However, I am concerned that judicial
offices would react just as negatively to a dog like a Pit Bull, Mastiff, Doberman or Rottweiller
as the general public would. So the real answer is, it depends. However before
you start thinking that you can stay and keep the dog, be sure and read the rest
of this article.
Landlords Options:
Most landlords are going to take the position
that they are not in the insurance business. Especially if they own or manage
multiple units. I believe that most of their attorneys are probably going
to advise them to simply get rid of the offending dogs. Since many landlords
have allowed pets, this presents a sort of conundrum for them. If they only ask
the offending tenants to get rid of their dogs but not the others, then we have
an equal protection problem.
If they do
nothing, then they take the risk of losing other tenants or the potential risk
of being sued. Most landlords are simply going to quietly ask you to get rid of
the dog. If you refuse, then they will probably just ask you to leave by giving
you a 30 or 60 day notice to vacate.
Before you blow a
gasket over this answer, you must remember this one simple fact. If you are a
tenant on a month to month basis, a landlord "doesn't need a
reason" to ask you to move. So long as they comply with the
applicable notice statue in the jurisdiction where the units are located.
Units under rent
control may have longer notice period or completely different requirements. You
should always check with a local attorney before evicting anyone. But for most
of you, a court will have no choice but to enforce this notice and evict you.
Tenants Options:
If you live in a single family dwelling
with a properly fenced yard and the landlord doesn't object, you are probably
not affected by this problem. On the other hand, if you live in a multiple unit
complex, your options are going to be either get rid of the dog or move.
If you have a
written lease for a fixed period of time that doesn't have a "no pets" clause,
the landlord probably cannot do anything until the expiration of the lease. That
doesn't mean that they couldn't take action against you if the City declares the
dog a nuisance.
At the very least,
the landlord could ask you to provide liability insurance, naming the
landlord as an additional insured. If you refuse, the landlord may be able to
convince a court to allow them to do it. If that happens and you cannot or
will not obtain insurance, you probably will have to move or get rid of the dog.
The landlord could
also require you to take "reasonable steps" to prevent the animal
from injuring a person or another animal. A court would probably find that this
is not an intrusive request, especially if the dog in question is similar to a
Pit Bull, Mastiff, Doberman or Rottweiller.
Conclusion:
I think that everyone who is around such animals must
be extremely careful. Many are gentle and others are not. The problem is that
these animals were originally bred for war, hunting, protection or attacking
people and other animals. They were never bred to be gentle and loving.
The key word is
"bred." The propensity for unprovoked and
unpredictable attacks is inbred into the animals. It is impossible to predict
with absolute certainty that they will "never" attack someone. On the
other hand a dead dog is "not" going to bite anyone.
Small children and
other animals are especially vulnerable to this type of unprovoked attack.
Anyone who has one of these animals and small children are taking on a risk that
is totally unnecessary and foolish. They are living with a potential time bomb.
Just because they are willing to undertake that risk, doesn't mean their
neighbors or their landlord is. I hope that this has been of help in explaining
the problem and various solutions.
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