As most people know by now, for the past few months I have been pre-recording the Dr. Rent Radio Show that you hear most Thursday evenings on WNRB-LP, 93.3 FM in the Wausauarea, or online at www.wausauhmong.org.
I did miss last week’s show because of a number of appointments and conflicts last Thursday. Even though the show is pre-recorded, I do need to be in the studio at 5 PM to start the show, and I was unable to do that. (Actually, the station has computer software that could have played the show, I am just not 100% how to do that, yet anyway).
My plan is to record this Thursday’s show tonight, Tuesday. However, in preparing the show, I noticed that when I blogged about what I covered on the radio show from May 5th, that blog post was getting pretty long and I didn’t cover pet policies that were covered in that show.
So… let’s get to that.
Many landlords don’t allow pets. This is perfectly legal, as pets and pet owners are not a protected class. In addition to saying no to pets, if a landlord is going to allow pets, they have the right to create polices… such as allowing certain pets and not allowing others, or allowing pets under a certain size, or putting restrictions on certain breeds of dogs.
Landlords must be careful if the animal is not a “pet” but is instead a “service animal” or a “comfort animal”. Service animals (seeing-eye dogs, as an example) are not pets, and are instead considered by the ADA to be assistance devices. A seeing-eye dog is to be treated no different than a white cane, a hearing-ear dog is to be treated no different than a hearing aide. They are not subject to pet restrictions or pet policies. A “comfort animal” is not the same as a service animal. A comfort animal is one that is needed to assist with some type of disability, but has not gone through the training and certification of a service animal. The law (written and case law) is very unclear on whether landlords are required to allow comfort animals as a reasonable accommodation. Sometimes the courts have required the landlords to allow them, and in other cases, the courts have agreed the landlord had the right to deny them. If faced with a comfort animal, landlords are strongly encouraged to seek legal advice.
From an economic point of view, there is a valid argument that allowing pets increases risks for the landlord. It increases the risk for potential damage to the unit, it also increases how quickly some items may suffer from normal wear and tear. To defer this risk, many landlords have taken to additional charges for pets. These charges can be broken down into three major categories: Pet Deposits, Pet Rents, and Pet Fees.
A pet deposit is when a landlord charges an additional security deposit above and beyond their normal security deposit to allow for the potential increased risk of damages that result in allowing a pet. As with the security deposit, if the pet does not do damage to the unit, this money is refundable.
There are a couple of ways to charge a pet deposit. One way is to actually print out on the lease that it is a pet deposit, for example: Security Deposit of $500, Pet Deposit of $250. Another way of doing it is to just add it to the total security deposit, using the example above, calling it a Security Deposit of $750. Remember, to avoid false advertising, if you advertise a certain amount is the deposit and the deposit is more with the pet, make sure that is made clear. Otherwise if the tenant sees there is a $750 deposit when they thought it was going to be $500, you could have issues.
My personal preference is to just call the entire thing a Security Deposit. The reason why is that according to ATCP 134.02 (11), any money you get from the tenant that is above and beyond 1 month’s pre-paid rent is, by definition a security deposit, and therefore when working with this money, you have to follow ATCP 134.06 that dictates how security deposit works. So, technically, that money has to be treated the same if you combine it to one amount, or call part of it security deposit and part of it pet deposit. That is what the law says. Keep in mind, different court jurisdictions can interpret these laws differently. I have heard of some courts inWisconsinwhere if you call something a pet deposit, that can ONLY be applied to pet damages. So, if the tenant left owing $1,000 in rent but no damages whatsoever, you should normally be allowed to apply the entire $750 you collected, no matter what you called it, toward that unpaid rent balance. However, if you label and identify the Security Deposit and the Pet Deposit separately, don’t be surprised if a court puts the law aside and determines that $500 of the Security Deposit can be applied to the outstanding rent, but because the pet did no damage, the $250 Pet deposit would have be returned.
The next option would be an additional rent. This is a monthly amount in addition to the normal rent. For example, the monthly rent is $600, but because you are allowing the tenant to have two dogs, you are charging $20 more per month per dog, making the total monthly rent $640.
(WARNING: When giving amounts for pet deposits or pet rents, I IN NO WAY want to endorse those dollar amounts to be my recommendation. I am just giving those dollar amounts as examples. Landlords should individually decide on their own policy as to whether to take pets or not, whether to charge an extra deposit or not, how much that deposit should be, or whether to charge and additional rent or not, and how much that rent should be.)
Again, when putting in this additional rent on a lease, either the amount of rent can be increased (rent is $640) or you can itemize the rent (rent is $640, pet rent is $20 per dog x 2 dogs).
Just like the potential downside of a pet deposit when you go to court, there is a potential downside to pet rent. Normally, a landlord justified the additional rent because of the increased wear and tear of a unit by allowing a pet. I have then heard courts rule that the threshold from normal wear and tear to where the rental unit is actually damaged, raised. A landlord may claim they had to replace the carpet after 6 years when they should get 10 years of life. A court could counter-claim that the carpet life was shortened when they allowed the pet, and the landlord knew this because they charged an additional rent, the amount of which should be considered when determining the new life of the carpet.
The final option is a Pet Fee. This is a one-time, non-refundable charge to have a pet. Pet Fee’s are not legal inWisconsin.
As pointed out earlier, ATCP 134.02 (11) defines what a security deposit is. The verbatim definition is “the total of all payments and deposits given by a tenant to the landlord as security for the performance of the tenant’s obligations, and includes all rent payments in excess of 1 month’s prepaid rent.”
Based on this definition, the one-time non-refundable pet fee is a payment given by a tenant to the landlord that is in excess of prepaid rent. Therefore, in my opinion (and the opinion of most courts), even though this fee is called non-refundable, it meets the definition of a Security Deposit and must be treated as a security deposit. And, as we all know, Security Deposits are refundable.
Tune in Thursday morning for my Dr. Rent Radio Show preview blog where I let you know what topic will be covered on this week’s program (it is a show of nothing but questions), and I provide a re-cap of my May 19th show.