Can a landlord charge for pet rent without pets?

Question

I moved into a new apartment at the beginning of July. Base rent is $875, pet rent $40 (total) and I anticipated having 2 cats living with us eventually (probably soon at the time). So, I told the landlord up front about this and gave them the vaccination papers and everything they needed and they immediately started charging for the pets (even though the pets have yet to be in the apartment). I switched states and there was a 1-2 week gap between when I moved here for a new job and July 1st. So, they "temporarily" started staying with my significant other's parents and are still there and we don't anticipate them moving to the new place for several months at least. Upon trying to not pay for the pet rent in for September, the landlord stated that it didn't matter that they weren't actually there (exact wording below).

Apartment is in upstate New York (not NYC) , U.S., and the landlord lives in Florida. Here are relevant pieces from the signed contract:

The monthly rent is $875 plus $40 pet rent, totaling 915 per month.

...

FAILURE TO PAY RENT

If the Tenant fails to pay the rent by the 1st of any month, regardless of fees incurred or owed at any time during the failure to pay rent, the Landlord reserves the option to give the Tenant a 5-day notice to pay the rent with all applicable late fees, to allow the late fees to accrue as described in section 15 above or the Landlord may institute eviction proceedings pursuant to law and/or other remedies provided by law including, but not limited to, suit to collect unpaid rent, damages exceeding the security deposit if the security deposit does not cover the amount of damages and reasonable attorney's fees.

...

PETS

a) The Tenant may keep a pet on the premises.

b) If the landlord agrees in writing to allow any type of pet on the premises, the landlord will require an additional NON-REFUNDABLE $400.00 pet fee. This amount has not been included in section 10 above.

c) The pet fee is for a pet(s) weighing less than 15 lbs, with breed restriction.

d) Pet 1 Details: ... Pet 2 Details...

e) No more than 2 pets will be authorized for the apartment. All pets must be disclosed. Monthly pet rent is shown in section 4.

f) By signing this lease agreement, you agree to disclose to the landlord and also not allow any pet to reside on the premises that has bitten anyone. Failure to disclose this information, regardless of bites happening before or after you take possession of the apartment, will result in the pet not being allowed to stay on the premises.

Here is the wording from the messages (they messaged/replied to us the night of September 1st, payments were made 1-2 days prior): My email:

Hello "landlord name", I just paid the rent for September. You'll notice that I made it $875 this month. This is because we have not yet moved the cats into the apartment and don't think they'll be coming within the next month or so. We will let you know when we bring them and pay cat rent accordingly. Don't worry about the first 2 months' cat rent. Thanks, "name"

Their reply (text message. Apparently they didn't see the email):

Hi "name". I just wanted to let you know that I received $875 for rent payment, but there is another $40 due. To avoid late fees, please check to make sure this third payment is made. Have a good weekend.

Our reply: mention email and repeat (basically copy-paste) what the email said.

Their reply:

Hello "name", thank you for you message. First, I did not receive an email yesterday about this, so I don't have the information contained in it, I'm not sure what happended to it, but feel free to send it again. Second, I can understand that there may be some confusion about this, but I hope you can understand that the pet rent is very much rent just like the main rental amount. There isn't really any flexibility in paying one month or another based on the pets being in the home or not. Just as you would be responsible for rent, even if you were out of town for a month or two, you are still responsible for the pet rent, even if they have not moved in yet. Again, I would be happy to review the email, if you would send it again, but the full rental amount is due today.

Then, we paid the $40 so we didn't potentially get charged a late fee. It feels as though we're getting held hostage a little for this just because we're young (early 20's). We tried to be courteous by even allowing them to keep the previous unnecessary payments, hoping they'd show the same reasonable courtesy, but I suppose not.

Can a landlord legally charge for pet rent even when no pets are present in the apartment? Should I take this to court and get a lawyer? The lease was signed with the impression that the $40 would only be necessary if we brought pets. It also sounds like if we never mentioned pets until, say, 6 months in, they would charge us pet rent for the previous 6 months even though the pets were not present.

Answer 1

Can a landlord legally charge for pet rent even when no pets are present in the apartment?

Yes. Absent any indication in the lease that your cats would not move in immediately, the landlord is right.

I assume that your lease reflects mutual knowledge of your intent to bring your cats over (via a marked checkbox or in "d) Pet1 Details: ... Pet 2 Details ..."). If so, according to the lease, you officially have pets in the apartment. To avoid being charged unnecessarily, you should have (1) ensured that the contract reflects the intended delay regarding your cats, or (2) asked the landlord to amend the lease once it is imminent that you will bring your pets over.

One or multiple administrative reasons justify a landlord to charge pet fees even if there are no pets in the apartment. For instance, the landlord might need to notify his insurer whenever an additional rental unit will host pets, thereby resulting in adjustments to a premium. Likewise, the number of pets might be a factor when a cleaning company bills the landlord.

The lease was signed with the impression that the $40 would only be necessary if we brought pets.

Hence the relevance of determining whether or not the lease objectively reflects that you notified the landlord of your intention to bring pets and, if so, when it would become effective. If the latter is not specified, it defaults to the start date of the lease.

It also sounds like if we never mentioned pets until, say, 6 months in, they would charge us pet rent for the previous 6 months even though the pets were not present.

It depends. If the landlord "busted" you, then he could sanction you in accordance with the terms of the lease. Instead, if you subsequently requested an amendment to the lease, then the landlord would only charge you from the date you officially bring the pets. But the effective date needs to be reflected in the lease/amendment.

Should I take this to court and get a lawyer?

No. First, for the reasons I mentioned above. Second, because lawyers want money, and they will detect right away that there is really not much to recover in a controversy like this one. Third, because complaining about a relatively small amount ($40/month) tells the lawyer that he or she won't get much money from you either (and lawyers want your money). And fourth, because the yearly total of pet fees indicates that the matter would have to be filed in Small Claims Court, where --if I am not wrong-- parties are not allowed to be represented by counsel.

Going to court is not "peanuts". Even if your were allowed --and you managed-- to retain a lawyer, you would end up paying so much in attorney fees to someone who might not be forthcoming, let alone diligent. If you no longer plan on bringing pets, just ask the landlord to amend the lease accordingly.