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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Boy, they are playing hardball in Maine.

If it becomes law, this bill will mean two things: first, that landlords will be "strictly liable" for the consequences of the acts of their tenants' pets. This means that they will be legally responsible even if they were not in any way at fault. Conceivably, this would apply even when the tenant keeps a pet in violation of a no-pets clause, and the landlord has not had an opportunity to even find out.

Not very fair, you say, and in fact, strict liability is rare precisely because it isn't fair. It's imposed in situations where great harm is at stake, consumers are not in a position to evaluate and avoid a dangerous situation or product, and compensating injured victims is even more important than fairness.

A good example of strict liability is the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, which makes landlords responsible for the cost of cleaning up pollution on their land, even if tenants caused that pollution and the landlords didn't know about it or had gone further and forbidden the polluting activities.

Landlords can turn around and seek "contribution" from the truly responsible parties, but meanwhile the government has gotten its money.

Similarly, manufacturers of consumer goods are frequently held strictly liable for the injuries these goods cause, even if they didn't carelessly produce them. The rationale is that only the company that makes the goods, not an everyday consumer, is in a position to evaluate the safety of the products it makes.

Although it may seem unfair to slap the manufacturer with responsibility for a defect it could not foresee, it's less palatable to leave consumers in the lurch.

Secondly, this bill would make a landlord responsible for the entire settlement or award, regardless of fault. The landlord could always turn around and sue the person who is rightly responsible -- the tenant -- but that's after the landlord has written a possibly sizable check to the injured party.

It's not hard to imagine the effect of this bill, should it become law. While an innocent landlord can theoretically sue the tenant for damages it has paid to an injured victim, in practice this will often be a hollow remedy.

Many tenants do not have resources, and in any event, making a landlord sue for contribution is onerous. Understanding this, many landlords will simply refuse to rent to tenants with pets.

Additionally, insurance premiums for landlords' liability policies are likely to soar because of the landlord's added responsibility for an entirely new, large pool of risk.

It's important to understand that people who are injured by tenants' pets already have a legal remedy against the landlord if the victim can show that the landlord knew, or should have known, of the presence of a dangerous animal on the premises, and failed to take reasonable steps to deal with it.

If the landlord has received complaints about a tenant's pet or has observed aggressive behavior but has failed to demand that the tenant get rid of the pet or leave, it's reasonable to lay some of the responsibility on the landlord for ensuing harm.

Several years ago in San Francisco, a dreadful case in which a tenant was attacked and killed by another tenant's vicious dogs resulted in not only a criminal prosecution against the dogs' owners, but also a claim by the victim's survivor against the apartment building's insurance company.

That claim was proper, and it settled -- the resident manager had the opportunity to observe the animals prior to the incident.

Tort law reformers have zeroed in on joint and several liability, arguing that allowing an injured person to collect from the deepest pocket at the defense table is unfair and promotes baseless lawsuits.

This proposed law expands joint and several liability in a context where it is both unnecessary and likely to cause consequences that no one wants: more pets surrendered to animal shelters and fewer pets adopted back out again, resulting not only in higher euthanasia rates but higher costs for the local governments that operate these shelters.

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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