End Dogtocracy

When considering the enforcement of restrictive pet policies in co-ops and condos, New York City's pet law is the tail that wags the dog. The pet law is well-intentioned and worth keeping but it's long overdo for a shampoo and some heavy grooming. Co-ops and dogs lead to hundreds of controversies every year.

The pet law provides the path for keeping a dog in a no-dog building. Just sneak one in, parade it once or twice past the staff and then sit tight for three months. If you don't get sued, you can prance the dog right past the board president. As long as you don't cause a nuisance, you can do this with any breed or size. If some of your neighbors join you, the pet law can transform your building to a dog- and cat-friendly building - even though the vast majority of your fellow cooperators may be opposed to pets.

Dogs in co-ops are okay if that's what the majority wants. That's democracy. They are not okay if they result from using the pet law as a stick to beat down co-ops honestly trying to enforce no-dog policies. That's, uh... dogtocracy? Here's how the city council can throw a bone or two to co-ops while staying out of the dog house with those whom the pet law was enacted to protect.

Take co-ops out of the dog house. The 1983 pet law seeks "to protect tenants from unscrupulous landlords seeking to evict them for improper reasons." Apparently, landlords were using no-pet clauses as a method of evicting tenants so that they could get higher rents or obtain vacant apartments to further cooperative conversion plans. Allow dogs, let the bonds grow, then bar dogs, leaving tenants to choose between abandoning their dogs or their homes. That's the nasty formula.

By some twist of fate, the courts decided that the pet law applies to co-ops. But they just don't fit the profile. They are not "unscrupulous" landlords. They already can charge for rent whatever it takes to run the building and maintain reserves. Co-ops have nothing to gain from evicting cooperators. Conversion is old news. Cooperators, too, can get attached to their dogs. But co-ops have no incentive to let the bonds grow to manipulate the owner. In fact, co-ops have every incentive to minimize controversies with shareholders over dogs.

By a simple stroke of the pen, the city council could remove co-ops from the dog house. Then cooperators would be on a leash to follow pet policies unless there was a knowing waiver that can "out bark" the standard non-waiver rules. Rent-regulated tenants in co-ops would remain protected. Cooperators with legal dogs would be grandfathered. But there would be opportunities for co-ops and condos desiring to be dog free.

Give co-ops a longer leash. The current waiver period is very short. And serving a default notice by the end of that time is not enough. Co-ops must begin a lawsuit three months from discovery.

This is almost impossible for a co-op. Information must pass from building staff to property manager to board liaison to full board, usually meeting but once a month. A decision to sue must pass from board to property manager to attorney, who must first give a thirty-day default notice and a five-day termination notice before suing in landlord-tenant court. Say goodbye to your three months. Of course, co-ops could do some things a bit quicker, but does a dog-sighting really dictate a "Condition Orange" alert?

And co-ops are not the dog track. Fast action breeds unnecessary lawsuits, which have a life of their own once lawyers start chowing down on controversy. So expand the waiver period to at least six months or deem it sufficient for a co-op to serve a default notice in the required time, or do both. Do anything to give co-ops a longer leash.

Curb your pet rule. The pet rule requires "open and notorious" harboring and "knowledge" by the "landlord or his agent" to start the three months running. In part of New York City, "open and notorious" harboring is deemed enough. So a cooperator could parade a dog through a building at times and locations designed to subtly avoid detection. This would be quite easy in smaller buildings without a doorman or full-time staff. By the time the co-op receives actual knowledge, the three months could be gone.

Also, without "knowledge" as a factor, when does the three months start on "open and notorious" harboring? If the first harboring is deemed "open and notorious" and no "knowledge" is required, then the three months may as well be three hours because there is no way the co-op will be able to avoid a waiver.

Some courts say mere knowledge by the co-op is enough to start the running of the three-month period. Open and notorious harboring is unnecessary. You may ask what more does a co-op need? But that's not what the pet law says. Arguably, the city counsel intended to allow a co-op to delay acting so long as the cooperator is at least attempting to hide the presence of the dog. Fair is fair.

And to start the three months running, the "knowledge" required is by the "landlord or his agent." In some boroughs, any employee, or even by a worker who is not an employee, is deemed a co-op's agent. That's too inclusive. "Agents" usually have reporting duties as part of their job description. Now, one low-level porter or outside security personnel could change overnight, by oversight or intent, the dog composition of a co-op. That's unfair

There are dogs and then there are DOGS. The pet law applies to all breeds and sizes of dogs except wolves and others prohibited by law. Pit bulls and Rottweilers are permitted unless determined to be aggressive or dangerous in each individual case. That means the pet rule could lead to a co-op sprinkled with large, potentially dangerous dogs. That seems unjust even if the three-month waiver period expired for them. The pet law does except a pet that "interferes substantially with the heath, safety, or welfare of other tenants or occupants of the same or adjacent building or structure."

But the city council and health department have failed to ban many potentially dangerous categories of dogs and other pets. Good luck trying to convince a court to do so under the pet law, which should be amended to exclude the three-month waiver for certain potentially dangerous dogs, and may be even all big ones.

A dog is a dog is a dog. Cooperators sometimes argue that they should be able to keep replacement dogs. Without any statutory guidance, courts occasionally have been tempted to allow this. In effect, the waiver was deemed to cover the owner and not the pet. The law should be amended to clarify that this is not the case. Otherwise, the next step could be a waiver that covers the purchaser of a co-op owner's apartment.

All's fair for dogs and co-ops. This may be the most radical idea yet, for which appellate division Justice David Friedman may want some credit. Make each cooperator notify the co-op of any plans to harbor a dog. If the co-op does not react within three months, or perhaps even a shorter time, then it could be deemed to have waived its right to do so.

Is this an unfair shift of the burden? Let's take three scenarios that a co-op owner faces in contemplating acquisition of a dog. First is a rule allowing pets. Notification here establishes the date of acquisition and the identity of the dog. Then, if the co-op later adopts a more restrictive policy, the cooperator will have established entitlement to grandfathering, which would arise from the three-month waiver rule, or could be directly required by law.

The second scenario is a clear prohibition that is apparently enforced, as demonstrated by the absence of dogs in the public areas of a building. The cooperator indisputably is on notice that acquiring a dog is a rule violation. If the owner wants to do so anyway, under one rationale or another, then it is only fair that the he/she gives notice. If the co-op does not react within the waiver period, or perhaps even a shorter time, the co-op would waive the right to object. It would be up to the cooperator to decide whether to harbor the dog in the interim.

The third scenario is a state of uncertainty about whether a pet prohibition is enforced. This is more common than one would hope. For example, the original house rule for most co-ops contains a "no pet" rule absent unless there is permission. Yet some or all pets may be tolerated anyway. In this hybrid state, it may seem fair for the cooperator to take in a dog without any notice to the co-op and get to keep it if the co-op does not sue in three months. That's the current pet law. But this unfairly also benefits the owner in Scenario 2, who harbors a dog knowing that it is violation of a plainly existing and enforced pet rule.

To not give unfair benefit to those in Scenario 2, the pet law should require notification from cooperators in Scenario 3. In effect, the owner would be notifying the co-op of the uncertainty and asking the co-op to clarify whether the rule would be enforced. As with Scenario 2, the enforcement could be deemed waived if the co-op does not respond, and in the interim the resident would have to decide whether to harbor a dog and risk having to give it up.

But if notice is required in all cases of the intention to harbor a dog, then many of the current controversies would be eliminated. And grandfathering would protect owners in Scenario 1. No co-op owners would suffer the fate that the pet law was designed to eliminate: having to choose between a dog the cooperator thought was allowed, and having to move from the owner's home.

The pet law performs a valuable function. But if curbed in one or more of the ways suggested here, it will emerge more valuable for promoting democracy - instead of dogtocracy - in our city's thousands of co-ops.

Robert Tierman is a partner in Litwin & Tierman.