The Corkboard: The Keeping Pets Burden

Landlord v. Tenant — six burdens an accuser has to carry before a cat in a room becomes a lease violation

The clause says "kept." Illinois has spent forty years explaining what that requires. Image: Monster News.

There is a sentence in a public housing lease that reads: “No dogs, cats, fowl, or other animals may be kept on the premises of any family unit, tropical fish and caged birds excepted.”

One verb. Kept.

A housing authority in Wayne County, Illinois wrote a letter to a tenant this month asserting that she “had unauthorized pet cat in your unit.” That is the entire allegation. Not that she fed it. Not that she sheltered it. Not that she knew it was there, or that it had been there before, or that she brought it in. That it was in the unit.

Whether that sentence describes a lease violation is a question about burden. Specifically: who has to prove what, and in what order. Illinois and HUD have both answered, and the answers are not close.

This is the first entry in a standing file. We will follow the question wherever it goes.

The clause, and the one behind it

Paragraph 20 is the prohibition. Paragraph 19 is the part everyone forgets:

“The rules and regulations of occupancy including the Pet Policy; Tenant’s Handbook covering special charges for services, repairs and utilities; and Grievance Procedures; constitute a part of this lease and the provisions therein are as binding as if the same were specifically included herein as Conditions of the lease, and shall be publicly posted in a conspicuous manner in the Project Management Office and shall be furnished to applicants and tenants on request.”

Read together: the lease bans animals kept, and any Pet Policy is binding because the lease adopts it — on the condition that it be posted and furnished on request. That condition is not decoration. It is the mechanism by which a tenant is supposed to know the rule she is being accused of breaking.

Burden one: name the clause and the element

A lease violation has elements, the way any other claim does. For paragraph 20 they are:

1. an animal within the prohibited class;
2. kept on the premises;
3. on the premises of a family unit;
4. by the tenant or a household member.

An accuser who cannot state which element is met has not made an allegation. She has made a remark.

The letter at issue manages one element — the animal is a cat — and asserts the second as a conclusion. It never touches knowledge, duration, care, custody or control. On the face of the document, three of the four elements are unaddressed.

Burden two: prove keeping, not presence

“Kept” is a term of art, and Illinois has construed it in the only place the word shows up often enough to litigate: dog-bite liability.

The Illinois Supreme Court:

“[h]arboring or keeping an animal therefore involves some measure of care, custody, or control, and it is in those senses that the terms ‘harbor’ and ‘keep’ have been construed.”

Steinberg v. Petta, 114 Ill. 2d 496, 501 (1986)

The Appellate Court gave the test its nickname:

“Keeping has a proprietary aspect. Reference is sometimes made to the keeper’s ‘dominion’ over the dog. Keeping is often defined in terms of the three Cs — that is, that keeping is exercising some measure of care, custody, or control over a dog.”

Frost v. Robave, Inc., 296 Ill. App. 3d 528 (1st Dist., 2d Div., Apr. 21, 1998), No. 1-97-2105, quoting 64 A.L.R.4th 963, 969 (1988)

Care, custody, control. Three words that a sighting does not satisfy.

Then there is Frost itself, which is worth reading twice. An employee brought his Akita to work. Other tenants testified they had seen the dog on the premises more than a hundred times. There were food and water bowls, and a cage. The business was still held not to be the dog’s keeper, because it exercised no care, custody or control, the dog did not stay overnight, and the employee brought it for his own convenience.

“Robave was not Jake’s keeper.”

If a hundred sightings, bowls, and a cage do not make a keeper, then a single observation during an unannounced visit does not either. The physical apparatus of animal care is evidence of presence. It is not evidence of the relationship the clause prohibits.

Burden three: produce the policy you are enforcing

Paragraph 19 incorporates the Pet Policy — and requires that it be posted and furnished. If the Authority is enforcing a policy rather than the clause alone, it has to show the policy exists, when it was adopted, that it was posted, and that the tenant could have had it.

HUD’s grievance rules put the same obligation in procedural form. Under 24 CFR 966.56(b)(4), the tenant has the right “to present evidence and arguments in support of the tenant’s complaint, to controvert evidence relied on by the PHA or project management, and to confront and cross-examine all witnesses upon whose testimony or information the PHA or project management relies.”

You cannot controvert a policy you were never given, and you cannot cross-examine a document that was never produced.

And HUD attached a consequence, which is the part worth pinning to a wall:

“The opportunity to examine before the grievance hearing any PHA documents, including records and regulations, that are directly relevant to the hearing. … If the PHA does not make the document available for examination upon request by the complainant, the PHA may not rely on such document at the grievance hearing.“

24 CFR 966.56(b)(1)

That is not a suggestion. A policy that is not produced is a policy that cannot be used. An agency that declines to hand over the Pet Policy it is enforcing has, by its own refusal, taken it out of the case.

Burden four: prove the observation was lawful

An allegation has to come from somewhere. If the only source is an entry that violated the lease, the Authority has a provenance problem, not just an evidence problem.

Paragraph 12(a) permits entry “upon reasonable advance notification,” during reasonable hours, for routine inspections, maintenance, improvements or repairs — and fixes the standard: a written statement specifying the purpose, “delivered to the premises at least two days before such entry shall be considered reasonable advance notification.”

Paragraph 12(b) permits entry “at any time without advance notification when there is reasonable cause to believe that an emergency exists.”

Paragraph 12(c) requires a written statement of the date, time and purpose of entry when the tenant is absent.

Those exceptions are narrow and they are provable. An agency that told a tenant the day before that her problem was not an emergency has a hard time establishing reasonable cause to believe an emergency existed the next morning. And 24 CFR 966.4(j) imposes the federal entry requirements on top of the lease.

So the question for the accuser is not only what did you see but how were you lawfully in a position to see it.

Burden five: give notice of the adverse action, and wait

This is where the regulation is at its most explicit, and where the omission is most visible on the page.

24 CFR 966.4(e)(8)(i) requires the PHA to notify the tenant of “the specific grounds for any proposed adverse action,” including “imposition of charges for maintenance and repair.” (e)(8)(ii)(A) requires that, where a hearing is available, the notice “inform the tenant of the right to request such hearing.”

And then (e)(8)(ii)(B), in full:

“In the case of a proposed adverse action other than a proposed lease termination, the PHA shall not take the proposed action until the time for the tenant to request a grievance hearing has expired, and (if a hearing was timely requested by the tenant) the grievance process has been completed.”

Read that against a letter that alleges a lease violation, demands information by a date, and conditions repair of a water heater on housework — with no mention of a right to grieve and no pause before enforcement. The gap is not a matter of interpretation.

Burden six: at the hearing, the accuser carries it

Here is the provision every tenant should know exists, because it settles the argument about who has to prove what:

“At the hearing, the complainant must first make a showing of an entitlement to the relief sought and thereafter the PHA must sustain the burden of justifying the PHA action or failure to act against which the complaint is directed.”

24 CFR 966.56(d)

The tenant opens by showing she is entitled to ask. Then the agency must justify what it did.

The rest of 966.56 supports it. The decision must be based “solely and exclusively upon the facts presented at the hearing” (966.56(b)(5)). The tenant may confront and cross-examine everyone the agency relied on (966.56(b)(4)). The hearing officer must be someone other than the person who made or approved the decision, or that person’s subordinate (966.53(e)). And the informal stage, if one happens, must be summarized in writing, with the specific reasons for the proposed disposition and the procedure for obtaining a hearing (966.54).

Now put the pet allegation on that table. The agency must justify it with facts presented at the hearing — not with a letter, not with a conclusion, not with “she had a cat in her unit.”

If they say “kept” is ambiguous

They drafted the lease. Illinois reads a contract “as a whole, rather than focusing upon isolated portions,” and treats the rule that ambiguity is construed against the drafter as “a secondary rule of interpretation, a last resort which may be invoked after all the ordinary interpretive guides have been exhausted.” Premier Title Co. v. Donahue, 328 Ill. App. 3d 161 (2002).

Note the order, because it matters. First, read the lease as a whole: paragraph 20 prohibits keeping; paragraph 19 makes the Pet Policy binding and requires that it be furnished. Then, if a real ambiguity remains, it is resolved against the party who wrote the document and could have defined the word.

The Authority could have defined “kept” in paragraph 20. It did not. That was a choice, and it is not the tenant’s to repair now.

The burden that never shifts

In an ordinary civil case the plaintiff proves the elements of the claim. Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688 (1st Dist. 2004) sets out a jury instruction to that effect for a breach claim: the plaintiff bears the burden on the contract’s terms, the failure to perform, and the resulting harm. Eviction under the Forcible Entry and Detainer Act, 735 ILCS 5/9-101 et seq., is the landlord’s action; the landlord states a legal ground and proves it.

The practical translation is blunt: “Prove it’s not my cat” is not a legal standard. It is a rhetorical move dressed as one. A tenant is not required to disprove an element the accuser never established, and a hearing officer who accepts the inversion has misallocated the burden the regulation assigns.

The exception worth knowing

One honest complication, because a one-sided article about burden would be a bad article.

Illinois’s Animal Control Act defines “owner” through several categories, including keeping, harboring, care and custody of an animal. Its separate provision for knowingly permitting an animal to remain on occupied premises specifically refers to a dog. It does not say “a dog or other domestic animal.” 510 ILCS 5/2.16.

That dog-specific clause cannot simply be extended to a cat. The statute’s separate keeping, harboring, care and custody categories still require attention to what a person actually did. Whether this lease’s own “kept” restriction applies remains a question about the lease and the evidence; an Animal Control Act definition does not itself decide this housing dispute.

What an accuser should have to produce

A checklist, for tenants and for agencies that would rather be right than fast:

1. The clause relied on, and the element alleged.
2. Evidence of keeping — care, custody, control, duration — not merely presence.
3. The Pet Policy, if one is relied on, with its adoption and posting dates and proof it was furnished — and note that under 966.56(b)(1) a document withheld from pre-hearing examination cannot be relied on at all.
4. The basis for entry: notice, consent, or a documented emergency under 12(b).
5. The written notice of adverse action required by 966.4(e)(8), including the hearing-rights statement.
6. A pause in enforcement while the grievance period runs, per 966.4(e)(8)(ii)(B).
7. At the hearing, facts — presented, confrontable, on the record.

The file stays open

We will add to this thread as courts and hearing officers decide:

• whether a “kept” clause reaches an animal present only momentarily;
• what evidence satisfies care, custody or control in housing, as opposed to bite liability;
• whether an observation made during an unlawful entry can support an adverse action;
• and how an agency proves a policy it was required to post and furnish.

If you have a letter, a lease, and a policy that does not exist, we would like to see it.

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Sources and citation list

• Lease paragraphs 8(c), 8(e), 8(g), 12(a)–(c), 19, 20 — Housing Authority of the County of Wayne standard lease form as supplied.
• Steinberg v. Petta, 114 Ill. 2d 496, 501 (1986).
• Frost v. Robave, Inc., No. 1-97-2105 (Ill. App. Ct. 1st Dist., 2d Div., Apr. 21, 1998); 296 Ill. App. 3d 528; three-Cs formulation quoting 64 A.L.R.4th 963, 969 (1988).
• 510 ILCS 5/2.16 (definition of “owner”).
• 24 CFR 966.4(e)(8)(i), (e)(8)(ii)(A), (e)(8)(ii)(B); 966.4(j).
• 24 CFR 966.53(e); 966.54; 966.56(b)(1), (b)(4), (b)(5), (d).
• Premier Title Co. v. Donahue, 328 Ill. App. 3d 161 (2002).
• Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688 (1st Dist. 2004).
• 735 ILCS 5/9-101 et seq.

Scope note: Frost and Steinberg construe the Illinois Animal Control Act, not lease language. They establish the ordinary legal meaning of “kept,” which matters because the lease never defines it. Pearson is a warranty case and is cited only for the general rule that a plaintiff bears the burden of proving a breach. No court has ruled on the dispute described here, and nothing in this article is a prediction of one.