Legal Question in Real Estate Law in California
Pet Agreement - Lease verbage in question
My apartment lease agreement states under Section5: Lessee's covenants and warranties relating to quiet conduct, waste, animals and nuisance, termination on breach, notice to quit - c. Pet Agreement: ''Lessee acknowledges that Lessee is not allowed to have any pets on said premises and any time. If pets are found on said premises or on the property, Lessee will be responsible for any damages to unit and also will be charged a fee in the amount of Twenty-five dollars ($25) for flea spray.''
We recently were given a 65 gallon fish tank and our landlord was in our apartment doing a repair while we were home and said we needed to give a $250 deposit to keep the fish tank. The next day he issued us a ''Notice to perform covenant or surrender possesion - code of civil procedure 1161'' stating our breach was ''Section 5:c - fish tank need $250 deposit per Patrick'' (landlord). Do we legally have to pay the deposit? Is this according to what our lease states? As of today (7/20) he told us that we have until Monday (7/22) morning to pay the $250 or he will give us an eviction notice effective Monday at 1:00pm.
I need legal advice fast. Thank you.
2 Answers from Attorneys
Re: Pet Agreement - Lease verbage in question
The lease prohibits all pets. If you violate the lease, you can be evicted. The landlord is offering to waive the no pets provision for your fish tank if you increase the deposit. As long as the total deposit does not exceed twice the monthly rent (or three times if the unit is furnished) this is legal.
You could argue that the lease allows you to have pets if you pay for the damage and for flea spraying. I don't think that will fly. It's a lot cheaper to give the deposit than to litigate. A judge or jury may find the deposit is reasonable, given the damage that the fish tank could cause if it breaks in an earthquake or otherwise.
Re: Pet Agreement - Lease verbage in question
If the landlord gave you a thirty day notice, then the landlord has you. Assuming the notice the landlord gave you was a 3 day notice and not a 30 day notice, then your case will turn on whether a judge will believe that fish are animals and whether the notice constituted a notice to get rid of the fish tank or pay $250, or just pay $250. Usually rental agreements specifically refer to fish tanks, but if yours does not then, from a purely legal view, you should prevail because the agreement is ambiguouis and you cannot be held responsible for an ambiguity you did not write. It will cost you at least $500 in attorney fees to litigate it, and you could still lose. The easiest solution is to just get rid of the fish tank--give it to your relatives or sell it, etc. If you get rid of the fish tank and your landlord still tries to evict you, you would probably win and be entitled to an award of your attorney fees and costs.
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