Landlord Agreed to Allow Tenant to Have Three Dogs, But Lease Says Only One

[Sonny Strait]

My question involves an eviction in the state of: Texas. My landlord has not evicted me but says it's one of the options he is considering and he will get back to me later this week with his decision. He has a family business and we dealt with his daughter on the lease. We have 3 dogs. She told us it would be $250 deposit for each dog. We said we couldn't afford that and she asked how big they were. We told her they all were under 12 lbs. She said she'd only ask for a deposit for one. But on the lease she wrote only one on premises. The landlord knows we have 3 dogs. He's known it for over 8 months when he came over many times to make repairs. He even joked about how noisy they were. Now it is the end of our first year and he is suddenly saying we are violating the lease because the lease says only one dog. Is the fact that he's never brought up the dogs until now enough evidence that he was aware of the verbal agreement? I believe the real reason for this is we didn't sign a standard 1 year lease. We signed a 3 year lease with the understanding that if we did so we would not receive a rent increase in that time. In the past year the house has had several things that needed repairs, new air conditioner, washer dryer repair and a hot water heater that has worn out. All very costly. I believe that he is having remorse for the 3 year lease considering the repair costs. Mainly because he brought these issues up after talking about the dogs.

[adjusterjack]

That's a bit complicated and, first, depends on the exact terms and conditions of the contract.

Sometimes a contract will specify that the contract is the only agreement and that anything agreed outside the contract doesn't count.

Sometimes a contract will specify that failure to enforce a condition is not a waiver of the condition.

Sometimes a court will rule (under common law) that those two elements exist and sometimes not.

I suggest you take your contract and your situation to an attorney and review your options. If you don't want to do that, you'll just have to wait and see if the landlord does terminate your tenancy because of the dogs and handle it when it happens, either by moving or getting an attorney.

Bottom line, though, is that you signed the lease that said one dog when you knew you had 3. A judge could easily rule on just the words written in the contract and leave you with the consequences of doing that.

[Mr. Knowitall]

One consideration is whether you can document that the landlord's agent (his daughter) knew that you would be moving in with three dogs, whatever the lease may say. Another consideration is whether you can document that the landlord or his agent had actual knowledge that you had three dogs in the rental, and how long they were aware of the presence of the three dogs. If you can prove that the landlord gave permission for you to have three dogs, or knew about the dogs and didn't object for a full year, you are in a good position to assert that the "one dog" provision was waived. No matter what the lease says about outside agreements, a landlord's ongoing permission to have three dogs in the rental unit would constitute a subsequent waiver. And even if a lease includes a nonwaiver clause, there's authority in Texas that a nonwaiver clause can itself be waived, and for the assertion of an estoppel defense against a party seeking to enforce a nonwaiver provision.

On top of that, even if you cannot prove that the landlord or his agent had any prior knowledge of the additional dogs, you have the question of whether having three small dogs would be deemed a material breach of a lease that permits one. A material breach can be grounds for eviction, but a minor breach will not ordinarily permit that strong of a remedy.

The big question, though, is whether your landlord is going to play hardball and actually try to evict you over the dogs. If so, it makes sense to consult a lawyer who offers eviction defense services. (If you qualify, legal aid typically offers that type of service and, if not, they can often refer people to lawyers in the community who offer those services.)

[Sonny Strait]

Thank you so much! I knew there had to be a term for it. Yes, he has known about these dogs for a long time (mainly because of all the repairs he's had to make just in this first year) and took no action against us. I am thinking that this won't go any furhter when I educate him about the meaning of a "Subsequent waiver" and I just might finally be able to get him to fix the water heater that hasn't worked in 2 months.