A doggy whodunit for landlords

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 8, 2012

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Here, you'd be demanding that the tenant do something (bring the dog in for a cheek swab) that was not a condition or term of the lease. For the same reason that you can't impose a fee midlease without the consent of the tenant, you can't make this demand until the lease is renegotiated or you've given proper notice to month-to-month tenants.

Can I charge offending owners for the cost of the collection kit and the lab analysis?

Dog poop on the lawn is property damage, which you can always charge for. You can charge for the time it takes your maintenance people to collect it, as well as the materials and analysis to trace it. That's no different than charging a tenant for the cost of a broken window, when you learn (through time-consuming investigation) that it was caused by his ball-playing child.

Can I impose a fine on violators?

Here things get tricky. If you've been a steady reader of this column, you might guess what the problem is: Governments impose fines; businesspeople are entitled damages. And damages must reflect the injured party's actual losses as closely as possible, which means they should be assessed after the damage has occurred.

Only in very limited circumstances will judges uphold a monetary consequence that's set ahead of time, known as "liquidated damages." These clauses are upheld only when both parties have agreed ahead of time that it will be very difficult to measure damages that might occur in the future.

They must also agree that the liquidated damages figure they've agreed upon is a fair and accurate estimate of what those damages might be.

A consumer-imposed fine would fail as a liquidated damages provision. There has been no agreement between landlord and tenant that the loss to the landlord would be extremely hard to measure when the maintenance staff finds poop on the lawn.

And besides, those damages are not, in fact, hard to calculate. It's the cost of the kit, the analysis and the staff time needed to deal with the problem. When there's a violation, the landlord can easily tally up the numbers.

So to be safe, don't impose "fines" on offending tenants. Simply add up the costs of addressing the incident, as explained above, and charge the tenant accordingly. This is no different than charging for staff time and materials needed to repair a broken window.

And when it comes to the cost of collecting the DNA in the cheek swab, take the high road and absorb the cost yourself. If, as seems to be the case, you'll have a dramatic drop in cleanup operations, this expense will more than pay for itself quite shortly.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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