Is it Legal to Charge Pet Rent or a Pet Deposit for Tenants with Animals?

By Kimberly Rau, MassLandlords, Inc.

As a landlord, should you allow pets? If you do, can you charge a separate deposit for those furry friends, or raise the rent?

If you haven’t considered your options for allowing pets yet, you should. A survey conducted by the American Pets Association found that 70% of American households have some kind of pet. Among that 70% of households, 69 million have a dog, and 45.3 million own a cat. If you consider the fact that around 34% of people in America rent their homes, that’s a lot of pets (~38.8 million) that belong to renters.

Dogs can be wonderful, but can also do a lot of damage to a rental unit. You can ban pets, or charge pet rent, but you cannot take an additional security deposit for animals. Lic: CC by SA 4.0 MassLandlords Inc.

Statistics on BostonPads show that approximately 10% of apartment listings mention cats or dogs are allowed. But when it comes to pet rent and deposits, what’s lawful in Massachusetts, and what could run you afoul of the law?

In this article we’ll look at what kinds of pet fees are appropriate, and which are unlawful. We’ll also do a quick overview of the difference between pets, support animals and service animals.

Pets Are Not the Same as Support or Service Animals

A pet can be just about any kind of animal that’s legal to own. Service animals are not pets. Service animals are dogs – only dogs – that have been specifically trained to provide some kind of service to their owner who has a disability. Service animals can typically accompany their owners anywhere they need to go. Support animals, including emotional support animals, can be just about any type of common domestic animal, but are not able to go into most public spaces with their owners.

Both support and service animals are protected under the Fair Housing Act, which means you cannot charge any additional fees or rent for them. You also must allow them in your rentals even if your lease says “no pets” or prohibits specific dog breeds. You can read more about service and support animals, and how to verify your renters’ needs for reasonable accommodation for disability.

Pets are a different story. You can stipulate “no pets” in your lease agreement and ban any species of animal you want. Massachusetts passed a law in 2012 that bars municipalities from banning dogs based on their breed. However, private entities, including landlords, can still prohibit certain dog breeds if they want. You can also limit your tenants to small animals in cages or tanks, or restrict pet ownership to animals under a certain size. You can allow all animals as part of the rent (and will probably never want for applicants again), or charge more for the privilege of having a pet.

Conversely, you could even say something like “pets required (medical exceptions permitted)” if you think everyone would benefit from having a furry friend. One landlord we heard of had the stipulation that everyone in the building with a dog had to agree to be available to watch their neighbor’s dog in turn if they went on vacation. But regardless of what you decide, you must be careful how you go about it.

Is It Okay to Charge Pet Rent if My Tenants Want Animals?

The issue of pet rent has been addressed by the courts, and the short answer is, charging pet rent is likely fine. This is additional rent charged monthly for the privilege of having an animal (or animals) in the rental unit.

In Flemming v. Greystar, a woman brought a lawsuit against her landlords, Greystar Management Co., claiming that their charging her pet rent for her dog violated the state’s security deposit statute. She said that her additional pet rent constituted a “security deposit paid over time.”

While the tenant initially won her case, it was overturned on appeal.

The statute in question, MGL Ch. 186, Section 15B, states that a security deposit cannot exceed one month’s rent. The statute also states that after a tenancy has commenced, a landlord cannot demand “rent in advance in excess of the current month’s rent,” nor can the landlord require “a security deposit in excess of the amount allowed.”

The appeals court determined that charging pet rent did not violate the security deposit law, as it was not a “deposit paid over time,” as Flemming had alleged. Also, the landlord never asked for additional rent in advance.

From that, we can interpret that pet rent is likely lawful, as long as you handle it in accordance with existing statutes. One thing to remember is that charging pet rent in the first month will put you in conflict with Ch. 186, Section 15B, so if your tenant is moving in with a pet, offer the first month free of pet rent.

As always, we recommend you consult your attorney if you are not sure how to proceed. What you cannot do is charge a pet deposit at the start of the tenancy if it is in addition to the security deposit.

What’s Wrong with Charging a Pet Deposit?

Charging a pet deposit when the lease is signed will run you afoul of the state’s security deposit law. Massachusetts law is clear that landlords may only take a security deposit that is equal to one month’s rent, and no more.

In an article about the Flemming v. Greystar case, attorney Adam Sherwin had this to say.

“From my reading of this decision, a ‘pet security deposit’ is still not permissible under the law,” Sherwin wrote. “In other words, a landlord cannot demand an extra security deposit from a tenant solely on account of the tenant having a pet.”

Even though you can’t charge a specific pet deposit, that doesn’t mean that a tenant’s animal can damage the place without consequence. You can still use the security deposit to repair pet-related damage outside of normal wear and tear, as long as you follow all of the rules governing security deposits. If Fido really destroys the rental, you can also sue for damages.

I Want to Allow Pets, But I’m Concerned About Damage. Can I Require Renter’s Insurance?

It’s normal to be worried about animal-related damage to your rental units. Dogs chew woodwork and dig at rugs. Cats claw at door trim. Any kind of pet can have an accident and potentially ruin the floors. It’s a lot to contend with. But while you can (and should) encourage your renter to have rental insurance, you can’t make them take out a policy.

A renter’s insurance liability policy may cover pet damage, but legally, you are only allowed to collect four fees from your tenant. Those are: 1) the first month’s rent, 2) rent for the last month of the lease, 3) a security deposit that does not exceed one month’s rent and 4) payment that covers the purchase and installation of a new lock. Anything else is unlawful.

Strictly reading the law, requiring your tenant to get renter’s insurance constitutes an extra fee, so encourage them to get a policy, but don’t insist. Even if you speak to a landlord who says they require insurance and had a judge say it was fine, don’t take this as an endorsement. The state’s lower courts do not have a uniform interpretation of this law, and higher courts have not addressed it. You may not get the same judge if your rule is challenged.

Conclusion

Pets can be a source of joy, but they can also be a real headache. Since the majority of households have some kind of animal, apartments that put a blanket ban on pets are not going to be the top choice of renters with pets. Pet rent is a good compromise if you’re up for allowing animals. If you are using our MassLandlords rental agreement, we have a Flemming-compliant pet rent clause that you can add to your lease. Just make sure to follow all laws regarding support and service animals, and stay away from pet deposits and insurance requirements.