Landlord / Tenant Q&A: LAURENE H. YOUNG, (B) MPM, RMP, REALTOR

LAURENE H. YOUNG, (B) MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers

Q. My tenant had an emotional support animal (small dog) and gave me a letter from a psychologist. When he moved out, the apartment smelled like a dog and urine, there were fleas, roaches and a lot of damage. I couldn’t charge any pet deposit and his regular deposit didn’t cover all the damage. He told me that I couldn’t charge him for his support animal and needed to give him back all his deposit. He had also smoked in the unit, despite wording in his rental agreement prohibiting it. He said he had a hard time walking downstairs every time he wanted to smoke. I assume he also couldn’t walk downstairs every time the dog wanted to go to the bathroom. For future reference, how do I know if someone has a real reason for a support animal?

A. Unfortunately, this is the type of tenant that makes it harder for those people who have a legitimate reason to have any type of service animal to get taken seriously. It can be very difficult to know if the need for a support animal is real or not. Anyone willing to pay a fee can get a letter certifying their need for a support animal over the internet, without having any genuine reason for a service animal or without even met with the certifying person. Fortunately, legislators are starting to notice and looking at ways to deal with this type of fraud.

You can’t discriminate against someone who has a service animal but you can impose reasonable restrictions. You can’t have the tenants sign a pet addendum, because service animals are technically not “pets”, but you can spell out certain things that must be done. The animal should be housebroken, should not bark excessively nor be aggressive. It should be in the tenant’s control at all times. You can also insist on basic cleanliness issues. It might be good practice to do a walk through of your unit more frequently at the beginning of any tenancy or addition to the tenancy (such as a new roommate or addition of a pet or service animal) to be sure that tenants are taking care of your property. Make sure you give them at least 2 days notice of your intent to enter the unit and that you are reasonable in the frequency that you do them. Once you are comfortable that your tenant is making every effort to be a good tenant and/or animal owner, you can scale back to checking your units once every 6-12 months.

Support animals should be treated like any other tenant. You wouldn’t allow a human tenant to urinate all over the house and leave that kind of damage. That type of damage would have to be repaired and charged to the security deposit. The problem becomes compounded when urine is allowed to stagnate on the floors or baseboards and then seeps into the wood. At that point, the only recourse to get rid of the smell might be to replace not only the flooring, but the wood underneath and the drywall. If any of your tenants caused an infestation of roaches, rats or other vermin, you can charge them for the treatment, so if the dog caused a flea problem, you can charge for that treatment.

Smokers are not a protected class, even though this tenant has trouble walking. You had every right to prohibit smoking in the unit and he should have complied with that request. Any damage caused to the unit because of his noncompliance, including discoloration of the drapes or walls can be charged to him. Neighbors have a right to be free from the effects of second hand smoke. Since 2006, Hawaii has had laws prohibiting smoking in hallways, lobbies, mail rooms, laundry rooms and party rooms of multi-unit housing areas. Effective Jan. 1, 2016, this prohibition included electronic smoking devices (e-cigarettes). Apartment and Condominium Boards can also establish their own policies making the entire building and grounds smoke free. Smokers, even if they are disabled, must abide by these rules.

It sounds like this tenant caused a lot of damage beyond the security deposit that you were holding. You would have to send him documentation of all the charges and a bill for the balance. Make sure to mail it within 14 days of his vacating the unit. If he doesn’t pay, you will have to sue him in court. Having a support animal or disability does not exclude him from paying for damages caused by him or his animal.

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