by Harry A. Heist, Attorney at Law
The economy is such that a landlord who might otherwise wish not to allow their tenants to have dogs is now accepting dogs. When the choice is an empty unit and foreclosure or accepting that tenant with the dog and keeping the home, the choice becomes clear for many landlords. Each landlord must make the decision whether to accept the risk, and each property manager must also decide whether they wish to assume the potential liability and additional work involved in managing a home with a dog or dogs.
The common misconception is that in the event of a dog bite on or near the premises, the owner’s liability insurance will cover the damages in a resulting lawsuit or settlement of the case. While in the days of old, insurance companies routinely paid out the sums for medical bills and pain and suffering, times have changed, and these old assumptions are incorrect. The cold, hard truth is that many, if not most, insurance companies are specifically NOT covering dog bite injuries in their liability insurance coverage on the premises, and more importantly, most are not covering dog bites due to a tenant’s dog on the premises. Owners may assume they do indeed have coverage when over the years, the insurance policy has changed, and although the insurance company notified the owner, it was typically in the policy renewal paperwork and overlooked by the policyholder. Insurance companies routinely do “drive bys” of their insured’s property and have been known to threaten to and then cancel the insurance if they observe a dog on the premises. Insurance companies take this matter seriously, and some use it as a convenient excuse to cancel their Florida policyholders.
Are dogs permitted?
At the outset, the property manager needs to know for sure that pets are permitted in the home they are managing. You have been managing units in a particular condo for years and have seen pets, but are they only various owners’ pets? It is becoming more common that the rules and regulations of the COA or HOA are allowing unit owners to have dogs, but NOT tenants. It is crucial to check these rules and regulations and not depend upon your visual observations or the representations made by the unit owner that dogs are allowed. In some cases, you may even observe tenants with dogs and assume they are allowed, not knowing that possibly they have been grandfathered in by the COA/HOA, that they are in fact unauthorized, that they are pets of visitors, or that selective enforcement is occurring. The fact that you observe dogs, or that tenants have been allowed to have them in the past, means nothing. In every COA/HOA rental, you MUST make sure you know the rules and regulations, and clear this with the association, especially if there is an approval process. You are expected to know the rules and regulations if you are going to conduct business in a COA/HOA. In most private, non-COA/HOA homes, pets are usually allowed, but local, county or municipal ordinances may prohibit certain breeds, and this can lead to unpleasant surprises. More counties and municipalities are implementing rules and ordinances each year, so this is one more thing to check before allowing the tenant to have a dog. Once those tenants are approved and you move them in, finding out that they cannot have their beloved dog will cause you or the owner major problems, as you or the owner are now potentially in breach of contract with the tenant.
Are you covered by insurance?
This one is easy. To determine if injuries due to dogs are in fact covered by the owner’s insurance, one simply needs to ask the insurance agent and examine a copy of the policy. This is assuming of course that the property owner has liability insurance on the premises. Many distressed property owners are allowing coverage to lapse or not getting coverage at all, leaving themselves and the property manager at great risk. When taking over management of a home, the property manager, as part of their due diligence and checklist procedure needs to check the following:
1. Does the owner have liability insurance? 2. Who does the insurance cover? 3. What are the limits of liability? 4. Does the liability insurance cover injuries due to dogs? 5. Did it cover at one time and now does not? 6. Does the liability insurance cover injuries due to a tenant’s dog? 7. If the insurance does cover dogs, are there any excluded dogs or “dangerous dogs” that are not covered? 8. If there is a COA or HOA involved, do they allow tenants to have dogs?
Florida Law and Dogs
Florida Statute Chapter 767 specifically deals with “damage” by dogs. By statute, a dog owner is liable for damage to persons caused by a dog. It is a strict liability statute, meaning that no negligence needs to be proven in the event of a “bite”. If the dog “bites” someone, the owner is responsible. Remember that injury or damage is not always from an actual dog bite, but could be due to a dog knocking down an individual or otherwise causing injury to that person. In Florida, due to the higher amount of elderly individuals, there are large numbers of non-bite injuries due to falls by persons attacked by a dog, simply knocked over by a friendly dog, or tripped by a dog or dog leash. Property damage is neither discussed, nor is injury or death to another animal addressed in Florida’s dog bite statute. However, in the event a dog causes damage to the rental premises, liability is clear, as the tenant is under a legal obligation not to damage or allow damage to be caused to the rental property under the landlord tenant laws and usually the lease agreement. A dog owner in Florida is liable to any persons injured by a dog, regardless of whether the dog had a propensity towards viciousness or injured a person previously. This liability becomes stronger when the dog owner knew of previous aggressive or vicious behavior of the dog, jumping on people by the dog, or fighting, growling, or other aggressive behavior towards persons or other pets.
In Florida, there is no “One Bite Rule”, meaning there is no free ride for the dog owner for the first bite, just because the owner was not aware the dog was dangerous. Since the statute covers dog bites only, a dog owner may be able to try to defend themselves by proving they did not know or had no reason to know that the dog was in fact dangerous if it causes an injury not related to a “bite”, but in any event, an injury can result in liability and a possible lawsuit. A dog owner can be considered negligent if he or she was careless and an injury occurs. Carelessness could easily be shown if those persons who allow their dog to run free on the premises or fails to adequately control the dog from injuring guests or invitees. Just because Florida statute 767 is limited to dog “bites”, a dog owner is not in the clear and can easily be held negligent for ANY injury due to a dog.
Is the landlord or property manager liable?
While it is clear that the owner of a dog will be held liable in most cases for dog bites or other injuries to a person, is the landlord or property manager liable? We are not sure. If the property owner had no knowledge that the tenant’s dog was dangerous, the injured person will have a tougher time holding the owner or property manager liable under Florida Statutes or under a negligence theory. The question then arises, should the owner or property manager have known that the dog was dangerous, aggressive, had a history of causing problems, bit another person or pet before, etc.? This especially becomes a problem when the property manager or owner failed to check out the pet, ask the proper questions on the pet application, find out its true breed, or observe its demeanor in the application process. Unfortunately, most property managers never even see the dog they approve. The applicant fills out the application, pays the fee or deposit, and the first time the property manager even sees the dog is when they do an inspection of the property 6 months or a year later.
As stated previously, most liability insurance policies are not covering dogs but rather are specifically excluding them, and very few will cover a tenant’s dog. If this is the case, is it worth the risk to allow a tenant to have a dog? We feel if there is no insurance available, there should be no dogs allowed. There is a possible solution though, and that is for the owner to purchase supplemental insurance to cover the dog. There are insurance companies now that will provide this supplemental insurance, and this should be looked into by the owner to determine if the cost is not too prohibitive.
Florida law is silent on whether a landlord can REQUIRE the tenant to purchase renter’s insurance. We feel it is perfectly reasonable and legal to require renter’s insurance from a tenant who will have a dog, and to require that renter’s insurance to cover any injuries that dog may cause. We urge you to check around and find renter’s insurance policies that do in fact cover dog injuries, and provide your tenants or applicants with this information. If you are going to require renter’s insurance though, you MUST make sure the tenant has purchased it, pays her premium, and that you are notified by the insurance company if the policy lapses for nonpayment or is canceled. When renewing the tenant, check again to see if the renter’s insurance policy has been renewed.
What is the “dangerous dog list”?
There is no such thing as a “dangerous dog” list, but there are a number of breeds and mixtures of breeds that insurance companies, counties and municipalities have considered to be or classified as “dangerous dogs”. The mixed breed really causes you a problem, as you cannot tell if the dog is in fact on the list. It is perfectly reasonable for you to require the dog owner to verify the breed by providing proof from their veterinarian, and remember, dogs are NOT a protected class, and you CAN decide not to accept a dog, even if it is not on your “dangerous dog” list. As long as you are not denying or approving a tenant’s dog in an illegal, discriminatory manner, there should be no fair housing implications. Some examples of dogs that have been considered “dangerous” include Dalmatians, Boxers, Presa Canario, Chow Chow, Alaskan Malamutes, St. Bernards, Huskies, Siberian Huskies, German Shepherds, Pit Bulls, Rottweilers, Doberman Pinschers, Akitas, American Staffordshire Terriers, Great Danes, Wolf-Hybrids and Rhodesian Ridgebacks. Note that this list is not all inclusive, and you can make your own rules as to size, breed, weight, or any other criteria you desire.
We could not finish this article without mentioning service dogs, companion dogs, therapy dogs or any other dog that might be used by a person suffering a handicap. If your tenant or applicant is handicapped, most of this article will NOT apply. We recommend you call your attorney and get advice on this on a case by case basis. If you have a written dog policy, make sure you always place a disclaimer on the policy sheet that you comply with all fair housing laws, and that your dog policy, including any requirement to pay a pet fee or deposit do NOT apply to service animals or animals for the use of a handicapped individual.