CONTROLLING PETS, P.2

By Dean M. Roberts

While the prohibition is straightforward and well-known to shareholders, the cooperatives’ ability to enforce these prohibitions has grown challenging. Tenant-friendly laws, which have been extended to cooperatives (but, generally, not to condominiums), coupled with court decisions reflecting reluctance to fully enforce these dog policies, have made it difficult to evict shareholders for violation of the dog policy.

The first legal hurdle cooperatives face is Section 27-2009.1(b) of the New York City Administrative Code, better known as the "Pet Law." The code provides that if a landlord does not begin legal action within 90 days of notice of a pet, the co-op (deemed to be the landlord) waives its rights to object to the dog.

The courts have liberally interpreted what constitutes notice to a landlord. In addition, the court has ruled that the petitions in a housing court proceeding must be served prior to the 90-day period under the Pet Law. This substantially reduces the limited 90-day period, as some co-ops have a 30-day notice provision for termination. Given the time required to serve the notice, additional days required for mailing, and the time necessary to purchase the index number and serve the petitions on the shareholder, there is little or no time, and no room whatsoever for error, for beginning a lawsuit.

Even in those cases where the 90-day rule clearly does not apply (i.e., a case where the proceeding is begun within 90 days of the starting date of the lease), shareholders still have an additional legal defense. They may invoke the federal fair housing statutes to make a claim of medical necessity to maintain a pet, even though there is a lease prohibition against them. The standard defense to any effort to remove the pet is that the pet is a service animal needed to address the disability of the shareholder or member of the cooperator’s family. While this exemption makes clear sense in the case of a person with a seeing-eye dog, the exception has been continually expanded to, in essence, render meaningless any dog prohibition.

Emotionally Gaming the System

The threshold for what constitutes a service dog is extremely low, as courts have held the standard to even include a pet used for emotional support. Under this vague standard, the pet is not required to have any specific training related to a medically diagnosed disability, bur rather can be qualified as giving emotional support to an individual who may suffer any type of alleged mental distress. This means that, in many cases, a mere doctor’s note stating that the pet helps address a shareholder’s anxiety concerning a specific or not so specific illness sufficient to raise the defense of medical necessity. There is also the fact that shareholders threatened with the loss of a beloved pet are often willing to invest substantial resources in fighting any eviction proceeding.

COMMENT In implementing a policy that allows dogs, cooperatives face a number of important issues and decisions as to form and extent. A threshold issue is whether the cooperative is an open-market or regulated co-op, as any such policy implemented at a regulated co-op, such as a Mitchell-Lama, requires approval of the cooperative’s regulatory agency.

The difficulty in enforcing a pet prohibition policy creates a situation where cooperatives find themselves with a growing number of dogs that cannot be legally removed and are unregulated. Many of our co-op clients have dealt with this problem by either removing the no-pet policy and replacing it with a strict set of guidelines, or if they continue to prohibit dogs, will implement rules for dogs of "necessity" —   the ones they cannot legally evict. These rules can be used in properties that permit dogs as well.

The board must decide whether there will be a fee imposed for pet ownership. These fees take the form of annual registration fees and/or smaller monthly fees to cover the expenses incurred by the co-op because of the presence of dogs. As is to be expected, this is often a very contentious issue and the most difficult on which to reach consensus. However, our experience has been that all policies with reasonable fees are acceptable to both dog owners and, where applicable, regulatory agencies.

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