Nonrefundable pet deposits under fire

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 10, 2011

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Rent it Right

Janet Portman
Inman News™

Q: Our landlord charged us a $200 nonrefundable pet deposit, plus a refundable deposit, when we moved in two years ago with our dog. Now that we're moving out, he's deducting for damage (scratched floors) that he claims was done by us humans, but in fact it was the dog's nails that caused the scratches. Isn't the pet deposit supposed to cover that? --Jim and Susan C.

A: Your question illustrates the mischief that can result from the phrase "nonrefundable deposit." It doesn't take someone with a Ph.D. in English to realize that this phrase is a contradiction in terms: A deposit is by nature returnable, so calling a deposit "nonrefundable" makes no sense.

A better description of the amount would be "pet fee," which goes a bit toward removing the confusion. But without a clear explanation in the lease as to how this fee will be used, misunderstandings can still crop up.

In fact, the likelihood of confusion and disagreements has prompted a few states (California, Hawaii and Montana) to prohibit nonrefundable fees altogether.

Properly speaking, a fee is a one-time expense for a specific service or item. It might also refer to an amount of money meant to compensate the landlord for any negative consequences that result from allowing an animal in the rental.

The fee could be used to cover added screening time and costs that a careful landlord will incur when considering an applicant with a pet (savvy landlords screen the pet, too). Or it could be considered compensation for the diminished applicant pool that results when pets are on the premises (some tenants will not consider living in a building with pets, fearful of noise, disruption, allergies or pet waste).

Most commonly, however, it's imposed on the assumption that the pet will cause damage, and the landlord does not want to argue about it when the tenancy ends.

When the latter reason is the basis for the pet fee, it behooves the landlord to say so and to make clear that damage clearly caused by the pet will be applied first to the nonrefundable pet deposit/fee before tapping into the refundable deposit.

The lease should also state that the pet fee will not be used to cover human errors, which (if you ask the dogs) are often far more serious.

Some states require explanations, though they need not be so specific: In Arizona, Nevada, Washington and Wyoming the purpose of any nonrefundable fee must be stated in the lease.

Even with a clear clause, there may be instances when it's hard to determine whether the damage was due to the pet's activities or the tenants' carelessness.

Most of the time, however, it's clear; one would think that apartment-wide scratches on hardwood floors couldn't reasonably be attributed to the human occupants. That's the argument you'll want to make if you end up in small claims court, arguing for the return of the deducted parts of your deposit.

Many landlords who have had hassles over "nonrefundable pet deposits" have come to the conclusion that it's easier to simply charge one refundable deposit to cover damage regardless of how it happened.

True, they give up the fetching prospect of being able to pocket an entire pet fee when the pet has proved to be a fastidious occupant, but they also avoid arguments about who caused the ripped curtains or carpet stain of unknown origin.

If their state does not set limits on the amount of the deposit -- and many do not, such as Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Minnesota, Mississippi, Montana, New York (nonregulated units only), Ohio, Oregon, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming -- they simply increase the deposit to cover the damage they think could be caused by the pet's residency.

Q: The legislature in Maine is considering a bill that would make a landlord responsible for damages caused to a third party by a tenant's pet -- period. That sounds crazy to me, and it will result in the disappearance of pet-friendly rentals. Only homeowners will end up being able to have a dog. Surely this isn't legal! --Patti M.

A: After reading your question, I thought that surely you had misunderstood the bill. But no, you've nailed it. The proposed law is two sentences long: "A tenant and that tenant's landlord are jointly and severally liable for damages caused to a third party by that tenant's pet. For purposes of this section, "pet" means any domesticated animal normally maintained in or near the household of its owner" (see HP0062, LD 74).

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