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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 45710
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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We have been a tenant in a single family residence for almost

Customer Question

We have been a tenant in a single family residence for almost 5 years. We are model tenants, never late on a payment, no covenant violations, never defaulted on any term and never any complaints until now... In July of last year we requested what we believed was normal maintenance and repair from the landlord. They dragged their feet for several months then the problem became severe, mold had infested the bathroom and 4 different contractors told us this was a health concern and the entire bathroom needed replacement. We immediately sealed up the bathroom and quit using it as we were both becoming ill and believed it was due to the mold. We informed the landlord of the health concerns and they ignored the request for several more months until we sent a serious legal notice. They responded and repaired the damages but were attempting to blame us for the damage. The house and the bathroom is 40 years old and the damage cannot be shown to be caused by us. We filed suit against them for loss of quite enjoyment and violation of the lease agreement, stating we paid the full price but did not receive full value. They retaliated by serving us with a DEMAND FOR COMPLIANCE OR POSSESSION NOTICE. We answered their Notice and it has been over 30 days and they have not filed a Forcible Entry and Detainer action against us at this time. However, they are trying to dig up some reason to evict us. When we moved into the house, we were authorized to have 3 dogs and paid an additional damage deposit of $200 per dog ($600 total). Two of these dogs died and one remains. My son has a dog that we are caring for frequently right now because he was injured on his job and unable to fully take care of him. They saw this dog and are assuming he is our dog that we have without authorization and they appear to be implying that they can file the FED suit and have us evicted because of this dog. Therefore, my questions are regarding what circumstances allow the landlord the legal right to evict us through the FED action. And, can they refuse our ability to have an extra dog at the house from time to time when the precedent allowing dogs here was established almost 5 years ago?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.


Good morning. Are you under a lease term at the moment? Or, are you a month to month tenant? Thanks.
Customer: replied 1 year ago.

Yes we are under a term lease that ends May 31st 2014

Expert:  Richard replied 1 year ago.
Thanks so much for your reply. Although you cannot prevent them from filing a FED, they have no chance of prevailing on this. You have the right under your lease to have 3 dogs..you have paid a security deposit for 3 dogs and I'm presuming that deposit is still being held by the owner. There is no legal requirement that those dogs need to remain the same dogs. So, if the owners should make an attempt to pursue this FED, you would get a notice of this and will be expected to appear at the hearing for the eviction order. At that hearing, you would present your lease and evidence that you have paid a pet deposit of $200 per dog for 3 dogs; you will also want to give the history of the situation (i.e., the mold issues, etc.) so the court can understand the landlord's motives in pursuing this FED. The court will determine that having this dog does not cause you to be in default in any way and will dismiss the landlord's petition. That will end the issue for you.




Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Customer: replied 1 year ago.

Thank you, XXXXX XXXXX claim the lease has a separate pet agreement, which I do not have and have not seen, which states that the permission to have dogs is only for the specific dogs listed in the pet agreement and that no other pets are allowed, not even for temporary care. Also, it has been my understanding that the FED action is a very serious action and minor issues that do not involve payment or major violations associated with improper, illegal or dangerous use of the house or repeated substantial violations cannot be cause for eviction. I cannot see how you can be evicted just for dog, which is causing no harm? What are some of the reasons that would rise to the level of eviction through this FED process?

Expert:  Richard replied 1 year ago.
You're welcome. First, this agreement would have to be produced and it's not likely that a court would rule you in landlord's favor in showing this to be a material default because: i) as long as the dog was not much bigger and/or a dangerous breed species such as a pit bull, dogs would be considered interchangeable due to a risk issue; and ii) the dog does not even belong to you...you are simply caring for it temporarily. Second, the court is going to have to find you are in "material" default. This is going to require non-payment of rent and/or an action or inaction which would put the property in risk of damage. This situation is simply not going to rise to that level given your initial agreement to be allowed 3 dogs. Also, you should know that the landlord tenant laws are designed to favor the tenant not the landlord.
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 45710
Experience: 32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
Richard and 6 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you, XXXXX XXXXX keep them assuming the facts about the dog, what if we send the landlord a letter stating the actual facts and request permission to keep this dog at our house when we want to? They will certainly refuse because they are very hostile towards us since we filed the suit. Then, what if we ignore their refusal and keep the dog whenever needed? What are their potential remedies, you state this is not a material default so no FED eviction right? So is their only remedy to claim we are in default and file a counterclaim in our suit against them to ask the court to force us to remove the dog? And if so, then they have no monetary damages and the best they can get is an order by the Court making us remove the dog from the property?


 


Also, if they did file the FED action over this dog issue, even though the issue is not material, no risk of damage to property, etc., is the FED ruling by the Court a black & white, either/or ruling to where the Court states you have to leave or you do not have to leave? Meaning, could he rule that we can stay but the dog cannot be there or is it that if we lose at all, we are evicted?

Expert:  Richard replied 1 year ago.
You can be proactive by sending the landlord the written notification you reference, explain what is happening, and tell the landlord you presume this to be within your rights as a tenant. Inform the landlord that if he thinks otherwise to please provide you evidence that this would not be allowable. Tell him if he provides this, you will comply with such evidence and have the dog removed. This will give you a strong basis to show your "clean hands" to the judge if the landlord then tries to obtain an eviction order based upon this. It's likely in any case even if the judge were to rule that the dog was not allowed, that the landlord would choose the easiest remedy....that of ordering the dog removed...rather than the eviction petition.
Customer: replied 1 year ago.

I must not have explained the issue well, the suit we have against them is in Arapahoe County Court and they have an extremely busy docket so if our suit does go to trial, it will be many months down the road. Mediation is still 2 months away and they won't even allow you to set a trail date until mediation is complete. It could be next year before the trial starts. This judge will not be hearing the case until well after any FED action takes place. However, the FED action is an expedited hearing, these are two different events - if they file the FED action, a hearing will be right away, like 1 week as opposed to the trial which would be many months from now. So I am confused by your response, I understand that asking permission would show clean hands but they will merely state that the pet agreement prohibits the dog without their permission. Our legal position is that they are unreasonably withholding the permission because there is now an implied contractual right to have dogs based upon 5 years of having 3 dogs. This implied contract is then in conflict with the express contract (if a pet agreement does in fact exist).


 


We are not concerned about this issue if it must be decided at our trial, our concern is only the FED action if they file it. If they file the FED action, that will be now so the only judge to make the decision on the dog would be the judge in the FED hearing. We are hoping that they can see that there is low probability of success in the FED process to remove us and so it would not be worth the risk - isn't the FED action like a mini-trial and is going to cost several thousand dollars to pursue? How much in legal fees would an average FED action cost? They are very, very cheap and don't want to pay for anything.

Expert:  Richard replied 1 year ago.
Thanks for following up. In my experience, the court will not issue the FED based upon the dog issue...it is simply not material and will be looked upon as retaliation. Even though your other case is pending, the court is going to want to understand that and given the situation, the court is likely to rule that no eviction petition will be issued while that is pending.

Just to let you know, I'm taking a break for lunch....if you have any further follow ups, I will address them immediately upon my return. I apologize in advance for any inconvenience and thank you for your patience.
Customer: replied 1 year ago.

So in summary, your opinion is that the eviction through the FED process is limited to material and substantial violations where there is either no payment or risk of harm to property. An unauthorized dog does not qualify – is this correct?


 


Also, I did not get an answer to these questions:


1). If they did pursue the FED action, is the ruling evict or not evict, or can they rule the tenant can stay provided the dog is removed?


2). Is the FED process like a mini-trial with witnesses and evidence? And approximately how many billable hours does the average FED case consume – I know it could vary a lot but what is the ballpark range?


3). If they want to pursue having the dog removed and considering they cannot do it through the FED, what are their remedies? It seems as though the only practical remedy would be to add it to their counterclaim in my suit against them – is that correct?

Expert:  Richard replied 1 year ago.
Thanks for your reply...See my responses below...

So in summary, your opinion is that the eviction through the FED process is limited to material and substantial violations where there is either no payment or risk of harm to property. An unauthorized dog does not qualify – is this correct? IN THE END IT'S UP TO THE JUDGE, BUT IN MY EXPERIENCE, THAT IS CORRECT. UNLESS THE DOG IS OF SUCH A BREED AS TO POSE A THREAT TO THE PROPERTY OR PERSONS, THE JUDGE IS NOT GOING TO HOLD THE TEMPORARY CARE OF A DOG WHERE PETS ARE ALREADY PERMITTED TO BE A MATERIAL DEFAULT.



Also, I did not get an answer to these questions:

1). If they did pursue the FED action, is the ruling evict or not evict, or can they rule the tenant can stay provided the dog is removed? IT'S WITHIN THE DISCRETION OF THE JUDGE....THE JUDGE CAN DENY THE PETITION AND PROVIDE THE DOG BE REMOVED OR PROVIDE THE DOG MAY STAY.

2). Is the FED process like a mini-trial with witnesses and evidence? And approximately how many billable hours does the average FED case consume – I know it could vary a lot but what is the ballpark range? IT'S AN INFORMAL HEARING, WITH EACH SIDE BEING ABLE TO PRESENT THEIR CASE, INCLUDING WITNESSES AND DOCUMENTATION. TYPICALLY, NO WITNESSES ARE CALLED, BUT THEY CAN BE. THE HEARING IS USUALLY A COUPLE OF HOURS AND THE PREPARATION IS ABOUT THE SAME IN THE TYPICAL FED SITUATION.

3). If they want to pursue having the dog removed and considering they cannot do it through the FED, what are their remedies? It seems as though the only practical remedy would be to add it to their counterclaim in my suit against them – is that correct? THAT IS CORRECT; THERE WOULD BE NO OTHER RECOURSE AVAILABLE TO THEM.
Customer: replied 1 year ago.

Thanks, XXXXX XXXXX you stated:


 


"IT'S WITHIN THE DISCRETION OF THE JUDGE....THE JUDGE CAN DENY THE PETITION AND PROVIDE THE DOG BE REMOVED OR PROVIDE THE DOG MAY STAY."


 


Does this mean he has the discretion to rule that we can stay but the dog must go?


 


Based upon all of the facts i have presented here today , do you believe we are more legally correct to inform the landlords that we are periodically caring for our sons dog and request permission, or if we don't say anything and allow them to continue their incorrect assumption that it is our dog?


 


 

Expert:  Richard replied 1 year ago.
Yes...the judge can rule that you can stay and the dog may go. The judge can also rule that you can stay and the dog can stay. If this were me, I would clarify to the landlord that this is not your dog, but that you are temporarily caring for the dog. But, in the end, I don't think it would adversely impact you in either case because I don't think the judge is going to rule the presence of a dog....yours or not...to be material.

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