ACCIDENTALLY AUTHORIZING THE UNAUTHORIZED PET

Much to the chagrin of many a manager, the unauthorized pet that she wants removed has somehow become authorized. This is particularly distressing when the unauthorized pet is an aggressive pit bull or a 100 pound Labrador. How did this happen? Note that this article does not apply to service animals, as they are statutorily authorized by the various fair housing laws, regardless of any lease provisions to the contrary.

The Correct Procedure

As everyone knows, the correct procedure for an unauthorized pet is to send a Seven Day Notice of Noncompliance with Opportunity to Cure. Seven days after service of the notice, you gather the evidence that will be needed to support a Seven Day Notice of Noncompliance Notice of Termination and then serve it. A good practice is to offer an agreement to vacate to the resident responding to the notice. The agreement serves the best interests of both the manager and resident. The manager avoids the expense of filing an eviction and the prohibition against accepting payment from the resident while the Seven Day Notice of Noncompliance Notice of Termination is outstanding. The resident avoids the stigma of an eviction. Whether the resident is released from any further financial obligations under the lease (rent until relet) is a separate matter of negotiation. If the manager does not want to force the issue of lease termination, it is legally permissible to serve another Seven Day Notice of Noncompliance with Opportunity to Cure to give the resident additional time to dispose of or apply for authorization of the pet.

Waiver and Estoppel

Every manager should be mindful of two legal concepts: “waiver” and “estoppel”. Waiver is a legal concept under which a party is found to have foregone his legal right by his actions. The lease gives the manager the right to demand that an unauthorized pet be removed. However, his actions are so inconsistent with enforcing that legal right that he is deemed to have “waived” that right. The most obvious example of a waiver is renewing a lease when he knows that the resident has an unauthorized pet.

Estoppel is a legal principle holding that if a party makes a legal representation to another party and the other party relies on that representation, the first party is prohibited from taking an action contrary to that representation to the detriment of the other party. He is “estopped” from taking legal action that takes unfair advantage of the other party’s trust in his representation. For example, the lease prohibits pets, but the manager’s agent indicates that the provision is not enforced as long as the pet causes no problems. The resident with the pet relies on that representation and signs the lease. The manager cannot enforce the no pet policy against that resident, because the resident relied upon the agent’s statement in signing the lease. It does not matter that at the time the agent made the statement it was the truth and that the manager has recently decided to enforce the no pet policy.

A Continuing Breach?

Florida Statutes provide that, if the manager has knowledge of the resident’s breach of the lease and accepts payment from the resident, the manager waives that breach. (“Acceptance of money is forgiveness”). This prevents managers from dredging up old lease violations to suit their needs.

The unauthorized pet is thought to be a continuing lease violation, because the unauthorized pet breach continues after payment. A county court judge may not agree. His opinion may be that it was the act of obtaining the unauthorized pet that was the lease breach. Acceptance of payment without objection from the manager, after the manager has knowledge of that lease breach, is a statutory waiver of that breach forever. The Seven Day Notice of Noncompliance with Opportunity to Cure helps to refute this argument, since it indicates the manager’s objection.

When Does the Manager Know?

The manager’s knowledge of the unauthorized pet is the trigger which subjects him to the resident defenses outlined above. The manager is imputed to have the knowledge of all of his past and present agents. This means that even the best, new manager is stuck with whatever the old manager and staff knew.

This concept makes it advisable for a new manager to examine all the resident files for evidence that there are known unauthorized pets. The most obvious evidence will probably be complaints from other resident about unauthorized pets. The manager should interview each staff member for any known lease violations, including unauthorized pets. Perhaps a maintenance person knows of a harmless cat owned by a nice resident and in a mistaken act of kindness has said nothing.

Pet Addendum

Having found yourself with a deemed authorized pet, what about demanding that the resident sign a pet addendum and pay a pet fee, pet deposit or pet rent? It can be argued that the manager has also waived these. I believe the better argument is that the manager has waived objecting to the pet but has not waived that the resident’s compliance with the process of authorizing the pet.

Demand can be made to fill out a pet application and sign a pet addendum. The resident is subject to the standard rules and regulations regarding pets. Likewise, I think the resident has to pay the standard pet fee (the fee for the privilege of having a pet on premises) and the standard pet deposit or increase in the security deposit, whichever is the manager’s policy, and the standard monthly pet rent prospectively. It is unclear if past pet rent would be collectible. The failure to charge it at the time the manager knew of the pet probably resulted in its waiver.

A word of caution about implementing your standard pet procedures: this is just my opinion, and many county court judges may feel that the pet fee, deposit and/or rent have been waived completely. Lastly, my opinion changes if a renewal is involved and the pet is known at the time of renewal. Renewing a resident with a known pet operates as a waiver of all pet associated fees, deposits and rent. The manager may not even be able to demand that the resident sign the pet addendum, which was ignored at the time of lease renewal.

I hope this article makes clear that a delay in addressing the unauthorized pet may in effect authorize that pet. It may even operate to waive the ability to collect a pet fee, pet deposit and pet rent.