No, a landlord cannot charge tenants an additional fee for having a pet. Massachusetts General Laws 186 § 15B  states that a landlord is only permitted to collect: 

(i) rent for the first full month of occupancy; and, 
(ii) rent for the last full month of occupancy calculated at the same rate as the first month; and, 
(iii) a security deposit equal to the first month's rent provided that such security deposit is deposited as required by subsection (3) and that the tenant is given the statement of condition as required by subsection (2); and, 
(iv) the purchase and installation cost for a key and lock. 

We see and hear examples where the law is not followed by landlord and real estate licensee alike.  More commonly, we hear that many of the large, commercial apartment complexes and property management companies and landlords throughout the country charge additional fees such as an application fee, a move in fee or pet fee to tenants as a matter of ordinary business. “Company policy” for these entities must be followed, despite protests from tenants and real estate licensees.  In their defense, they state the Massachusetts law is silent as to these types of fees and that these additional fees help defray costs and sometimes add additional revenue for landlords. As discussed below, this practice is illegal in Massachusetts.

In an October 2014 ruling, the United States District Court for the District of Massachusetts found in Perry v. Equity Residential Management, LLC, (“ERM”) that ERM violated MGL 186 § 15B when it collected from its tenants an application fee, amenity fee (which was subsequently changed to a move-in fee), community fee and initial pet fee. In the court’s decision, Federal District Judge Zobel commented “Giving the statute’s words their ordinary meaning “consonant with sound reason and common sense,” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 840 N.E.2d 518, 522 (Mass. 2006), section 15B(1)(b) simply is not susceptible of more than one reasonable construction. The statute is a list. If a fee is on the list then it is a permissible up-front charge; if it is not on the list, then it is impermissible.”

The court found that while MGL 186 § 15B does not explicitly forbid application fees, move-in fees or pet fees, it does state that “no lessor may require a tenant or prospective tenant to pay any amount in excess of” the four permissible charges mentioned in the statute. Noting this restrictive language, and analyzing similar Massachusetts case law, Judge Zobel ruled that the collection of such fees violates both MGL 186 § 15B and Massachusetts’s Consumer Protection Act (MGL 93a), which could expose a landlord to triple damages plus attorney fees.

Additional fees, such as pet fees or deposits and smoker’s fees are not allowable even if a tenant agrees to the charge. If a landlord allows pets and the pets cause damage to the unit beyond reasonable wear and tear, the landlord may use the security deposit to make repairs so long as the landlord has complied with all applicable security deposit laws.  It should be noted that it is not unlawful for a landlord to refuse to rent to a prospective tenant that has a pet unless that pet is a service or assistance animal needed for a disability in life.  

Even if a landlord has a “no pets” policy, they must make reasonable accommodation for a tenant with a disability in life who has the need for a service or assistance animal.  A landlord may require a tenant with a service or assistance animal to comply with certain rules, such as keeping an animal on a leash and cleaning up after it; however, a landlord cannot require that tenant to pay any additional fees associated with having the service or assistance animal in the leased premises. Generally, landlords must also permit owners of service and assistance animals to make modifications to the leased premises (such as a fenced-in yard) which may be borne at the sole expense of the tenant; who may be required by the landlord to return the property to its original condition at the termination of the lease.  Placing additional burdens on a tenant who needs a service or assistance animal due to a disability in life is contrary to both Massachusetts law and the Americans With Disabilities Act.

It is interesting to note that Massachusetts fair housing laws may protect persons with a disability in life that use “emotional support” animals which are not trained as service or assistance animals.  Additionally, trainers or owners of “service dogs in training” that will be placed into a new home for someone with a disability in life are afforded the same protections under Massachusetts law as is an owner of a service or assistance animal with a disability in life.  This is an evolving area of the law and consultation with a knowledgeable professional adviser or discussion with the Massachusetts Commission Against Discrimination is suggested before denying rental housing to anyone with an animal that they claim to be used for a disability in life or for medical or emotional reasons.

The decision of Perry v. Equity Residential Management, LLC case should be followed by all landlords, property managers and real estate licensees in Massachusetts. Landlords who continue to charge fees to tenants which are not explicitly allowed for under the law are exposing themselves to the risk of many thousands (or tens of thousands) of dollars in damages for each additional fee that they charge a prospective or current tenant.  

If you would like to discuss any of the points raised in this article, please contact GBAR Legal Counsel William G Mullen, III at 617-399-7842 or via email at wmullen@gbreb.com.

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