Co-Ops and Condos Update Pet Policies to Address Growing Pet Ownership Demands

When it comes to dealing with the different interests of your building’s shareholders or unit-owners, balancing the needs of pet owners and their non-pet neighbors is one of the most contentious. Boards can set their own policy, whether pro or con, but the trend is definitely in the animals’ favor: There are an estimated 1.1 million dogs and cats in New York City — and that’s not including the pandemic boom in ownership. Some buildings remain problem-free without a pet policy, while others keep the peace by requiring owners to sign a simple agreement regarding their responsibilities. But these days, whether large or small, co-ops and condos would do well to have a formal policy in place — outside of what the law requires for service and emotional support animals. “There’s no question we’re seeing more and more pets allowed, which has become an important amenity at many buildings,” says Stewart Wurtzel, a partner at the law firm Tane Waterman & Wurtzel, adding that a clear, well-defined pet policy is your best defense against messy disputes. “But it has to be carefully crafted,” he says.

WHERE A PET POLICY LIVES

At some co-ops, a simple sentence on whether pets are allowed is already in the proprietary lease; at condos, it’s sometimes in the bylaws. But those are the exceptions. At most buildings, existing policies are in the house rules — and should stay there. “The pet rules should never be in the proprietary lease or bylaws as those require a supermajority owners vote to change and amend,” says Theresa Racht, the principal at Theresa Racht Esq, PLLC. “Pet rules are something that need to be regulated by the board and easily changed by the board.”

Even when an existing pet clause is in the proprietary lease, “for all practical purposes, it can be amended by boards in the house rules,” explains Dean Roberts, a member at the law firm Norris McLaughlin, adding that the same applies to policies in the occupancy agreements at Mitchell-Lama and limited equity co-ops. 

DRAFTING THE RULES

If you’re creating a new policy, there are two options: start from scratch and tailor it to your building, or have your managing agent obtain policies that have worked well at other co-ops or condos and use them as a template. Every policy should include the number and types of pets allowed; with dogs, you can also specify sizes and breeds. Canines and felines aside, think twice before allowing rodents like gerbils and hamsters, which can wreak havoc if they escape their cages, or certain reptiles that eat live crickets or mice. “I’ve had buildings, including one high-end co-op, where crickets escaped, reproduced in the walls, and an exterminator had to come in,” Racht says. “That isn’t something boards would know about.”  

EMOTIONAL SUPPORT ANIMALS

There’s no need to include service and emotional support animals (ESAs) in your policy or have a separate policy for them, since New York City’s anti-discrimination laws require residential buildings to allow ESAs as a reasonable accommodation for people who rely on them. However, they must provide medical documentation or a letter from a qualified service provider, which your managing agent can verify. Boards should also make sure to answer requests for ESAs promptly, since delays can be interpreted as a “no” and lead to complaints being filed with the NYC Commission on Human Rights (CCHR). 

For her part, Racht says that by including any specific reference to ESAs, “you’re just kind of opening the door to problems. You’re planting a seed in people’s minds for sneaking in a dog even if they don’t need one.” However, she says she doesn’t think it’s a bad idea to attach your pet policy to purchase applications for potential buyers as a proactive move. “I’ve had more than one building that includes it in the application package and requires a signed statement that they’ve reviewed it and agree to comply,” she says, adding that some co-ops and condos even require prospective buyers to bring their animals to their interview with the board. “It sounds like overkill, but it’s not.”

PET PEEVES

Whether a pet or an ESA, all animals have to conform to the same rules, which means you need to create a set of guidelines on acceptable behavior and how you’re going to enforce your pet policy when people violate them. Those rules can include requiring that dogs be leashed in common areas, prohibiting them from defecating on the property and sidewalk, and making pet owners responsible for any damage caused to other residents. 

   Nuisance issues like odors and chronic barking are generally covered under the habitability clauses in proprietary leases or in condo house rules. “If there is a crisis, like someone’s pit bull causing a reign of terror by running up and down the hallway or scaring people in the elevator, you’ll have a framework to operate from,” Roberts says. 

When accommodating ESAs, there can be unexpected wrinkles. “I’m dealing with a very interesting battle right now where a shareholder brought a support animal to the laundry room and put it up on the table while sitting and waiting, and somebody else who was very allergic to dogs had a bad reaction,” Roberts says, adding that he expects to see more of these “clash of rights” issues. In this case, he adds, “a solution would be allowing the owner to bring her support animal, but solely for going in and out of the laundry room. There’s no staying in there to fold or sort your clothes or anything like that.” (For another clash of rights issue — this one between an ESA owner and a condo board — see below).

Carl Finger, a partner at the law firm Finger & Finger, recently represented a condo that also confronted a canine ESA problem. “The unit-owner was walking his ESA in an area where children commonly played, and people weren’t happy about it,” he says. When the person was asked to walk the dog elsewhere, he filed a complaint with the CCHR. “We argued that the unit-owner didn’t require an accommodation for walking the dog in the play area, and the board had good documentation of the situation,” Finger says. “The complaint was dismissed.”

REPORTING ANIMAL ISSUES

Indeed, whether it’s a squawking bird or a dog barking nonstop, buildings need to establish a clear protocol on how shareholders, unit-owners and staff should report animal issues — and how board members should deal with them. When someone is aware of a pet or emotional support animal that’s in violation of the building’s pet policy, the first step is notifying the board. It’s critical to get verification from multiple neighbors and have them keep a detailed record of every incident. The board or its management company can then write a letter to the owner including that documentation to see if the problem can be solved without legal action, which often works. 

“We were involved in a resolution where a dog actually bit a few people, but after a reasoned discussion, the shareholder agreed to remove the animal,” Finger says. “In other cases, we’ve seen people start using a muzzle. We’ve even had some owners who agreed to dog training at their own expense.”

If violators refuse to cooperate after receiving several notices, co-op boards can impose escalating fines before sending a notice of default under the proprietary lease. If the problem isn’t cured within 30 days, you can threaten eviction. 

“But that’s not an option at condos, where people own their units and there’s no way a board can terminate the lease,” says Steven Sladkus, a partner at the law firm Schwartz Sladkus Reich Greenberg Atlas. “The condo may have to sue for an injunction, which you obviously don’t want to do if you can avoid it. It’s always best to try to resolve things amicably.”

SPREADING THE WORD

Whatever policy you create, share it with management, and have your attorney review the document before distributing to shareholders or unit-owners to make sure there are no legal mistakes that could lead to messy disputes or land you in court. “I also recommend that buildings recirculate it once a year just to remind people,” Racht says. And once the rules are in place, they have to be applied and enforced equitably in every case. But even the most comprehensive policy can’t anticipate every flashpoint that might erupt. “There’s no way to predict them all, so the policy is always a work in progress,” Roberts says. “Still, the more detail, the better. Too many rules are rarely a problem.”

 SIDEBAR

Board v. Dog: A Tangled ESA StandOff

By John W. Egan and Ingrid C. Manevitz

Housing providers, including co-ops and condos, have a legal obligation to provide reasonable accommodations to residents with disabilities, which includes permitting them to live with emotional support animals (ESAs). But boards that prohibit pets or have specific restrictions on what kind are allowed often face a Catch-22: On one hand, imposing limitations may invite a lawsuit or a complaint to a civil rights agency, and on the other, allowing ESAs may encourage abuse. The New Jersey Supreme Court’s decision in Players Place Condominium Assn. Inc. v. K.P. illustrates the dangers of taking an overly strident approach to restricting ESAs, and the importance of engaging in a good faith dialogue with residents who request accommodations.  

The details. Players Place had a rule limiting pets to “the small domestic variety weighing thirty (30) pounds or less at maturity.” The unit-owner, K.P., informed the association that his girlfriend, B.F., was considering adopting an ESA dog that would likely exceed 30 pounds and asked what medical documentation would be needed. Three days after making the request — and without receiving a response — B.F. adopted the ESA, Luna, to live in the apartment.  

The association responded days later, stating that it “will not and cannot accommodate any alleged disability in regard to a dog that weighs in excess of 30 lbs.” K.P. responded that B.F. was moving in with him, along with Luna, and attached a letter from B.F.’s health care provider, who indicated that B.F. “suffers from mood and anxiety disorder” and “would benefit” from having an ESA. The association responded that it would commence an action barring a dog over 30 pounds. K.P. then advised the association’s attorney that ESAs are not considered pets under the law. A few months later, after the association’s board president spotted Luna in a building common area, the association commenced an action to remove the dog. B.F. and K.P counterclaimed for disability discrimination. 

The decision. Following a trial, the court allowed B.F. to keep Luna, citing the health-related benefits to B.F. and the lack of disruption caused by the dog. The board appealed. The appeals court ruled that there was a valid basis to allow Luna to remain in the apartment on equitable grounds, but also held that B.F. failed to demonstrate her discrimination claims. The case was appealed to the Supreme Court of New Jersey, which clarified the legal standards for housing accommodations in this context and remanded the case for a new trial.

The takeaway. After nearly six years of litigation, Players Place is now back to square one in having to try the case again. It’s a cautionary tale for all boards, including those in New York City, and offers some valuable lessons. One is the importance of requesting information about a resident’s disability-related needs early in the process, which may make boards less inclined to commence litigation to remove an ESA. Whether a resident is “disabled” is usually not worth fighting over. The court in Players Place noted that the definition of “disability” is broader under New Jersey law and includes “any mental, psychological, or developmental disability” that is demonstrable, medically or psychologically, by accepted clinical techniques. (By comparison, federal law limits the definition to conditions that substantially limit a major life activity.) 

Similarly, the New York City Human Rights Law (NYCHRL) defines “disability” broadly to mean “any physical, medical, mental or psychological impairment.” As a result, co-ops and condos in New York City may have an uphill battle in arguing that residents requesting accommodation are not disabled, so long as they make a minimal showing. Instead, boards should focus on what is being requested, how that relates to a qualifying medical condition, and the burdens the accommodation would present for the building, including other residents. They need to be flexible with respect to rules, policies and procedures that would amount to a reasonable accommodation. When residents request permission for an ESA after the animal moves in, boards still must consider the request in good faith, even if that runs contrary to their rules.

The court in Players Place also determined that the housing provider had the ultimate burden to show that the requested accommodation was unreasonable. New York City law states that housing providers have this burden. The court also held that the law does not require a prescription or a recommendation from a health care provider for an ESA. The upshot for housing providers in New York is that they need to have rational, well-supported and objective reasons, preferably addressing the impact of the accommodation on residents, in order to deny a request. Additionally, the NYCHRL requires that boards communicate their decision in writing.

Boards need to have a good faith dialogue with residents requesting accommodation and not prejudge the outcome. In Players Place, that discussion did not happen.

John W. Egan and Ingrid C. Manevitz are partners at the law firm Seyfarth Shaw.