Helene Hartig, Founder and Owner, Hartig Law

The Emergency Tenant Protection Act was originally enacted in 1974 and amended many times, presumably to protect the nearly one million non-purchasing tenants living in co-ops and condos in New York City and the surrounding areas. It’s intended to protect against "landlord abuse" and ensure affordable housing.

The rent-stabilized tenants protected under this act, unlike typical co-op shareholders and condo unit-owners, have what I like to call “super” rights. They have rights that were included in their original lease – and sometimes additional rights. For example, if there is nothing in the original lease prohibiting dogs, or smoking, or washers and dryers, tenants under this act would be allowed to keep a dog, to smoke, or, in some instances, to have a washer or dryer – even if these things are prohibited in the cooperative or condominium in which they live.

However, the rights under the Emergency Tenant Protection Act are not unfettered. If a tenant behaves in a disruptive manner to the other residents of the building, then it is possible that a proceeding could be brought and the tenant evicted.
But the relationship with a non-purchasing tenant is not with the board, the shoulders, or the unit-owners. It is between the tenant and the sponsor, or the holder of unsold shares or the investor or whoever happens to be the owner of the apartment. So the board or its managing agent needs to communicate frequently with the apartment owner in order to alleviate a difficult situation.

What do you do if a shareholder comes to the board or the agent and complains about a situation with a non-purchasing tenant? What if this tenant has a dog that exhibits overly aggressive behavior to other residents, and the apartment smells because they don't clean up after the dog, or maybe the dog barks day and night?

I would suggest that the manager speak with the shareholder who has complained about the situation, and find out names, dates, and times. I would also suggest that a log be created which will be helpful should the situation wind up in court. Have an audio recording and a video that show examples of the specific behavior that may be shown to the offending tenant or to the sponsor-owner, who may not believe the board and just thinks the board is trying to harass him into selling his apartment.

After speaking with the complaining shareholder, the managing agent should talk with the owner because the board has no direct legal relationship with the non-purchasing tenant. The managing agent needs to be very direct and say, “Look, we have a problem. We'd like to work with you to address this problem. It's affecting people in the building. But since the offender is your tenant, it's your problem. And you need to deal with the situation.”

Provide as much ammunition as possible to the owner so that the owner can approach the tenant and deal with the situation. Set a deadline because if nothing is done, the complaining shareholder will be right back in the managing agent's office or sending emails in the middle of the night to everyone on the board.

The manager may suggest a mediation session or an informal neighbor-to-neighbor meeting. The board should remain as uninvolved as possible. But if the unit-owner wants the board to be the conduit, the board should be cooperative without taking over the responsibilities of the unit-owner.

There is also a simple resolution to the problem. If the dog is barking through the night, perhaps this dog needs to go to discipline school, or else the non-purchasing tenant needs to hire a trainer. If there are odors coming from the apartment, sometimes all it takes is the purchase of an enzymatic cleaner at Home Depot or the local pet store. Sometimes the dog is having cabin fever and just needs to go outdoors.

Sometimes this is a violation of the New York City noise code, which has very specific provisions. You can call the city complaint line (311)  because a dog can not bark before 7 A.M. or after 10 P.M. or for more than five consecutive minutes. Additionally, there are groups, such as the American Society for the Prevention of Cruelty to Animals and the Humane Society, that will investigate. The Department of Environmental Protection will also visit, which may frighten the tenant into resolving the situation quickly.

If everything fails, the unit-owner must take the offending non-purchasing tenant to court. Remember, the board’s responsibility is to all residents of the building. Someone can go against the board and claim a breach of the warranty of habitability, that the right to use, enjoy, and sell his or her apartment has been impaired because of the nuisance created by the non-purchasing tenant. If it winds up in court, the unit-owner and the co-op or condo board should go in together as a team. And the complaining shareholder must be willing to be a witness. Otherwise the case will be lost in the first five minutes.
Courts are loath to evict any tenant, particularly if they're elderly or disabled. They’ll ask you what you as a board did to resolve the situation. So the more you've done to find a solution, the more it will help you if there's a legal case down the road.

Everyone should work together, even if tenants protected under the Emergency Tenant Protection Act have these super rights. Doing so will preserve resale values and the quality of life in the building, and it will be particularly helpful to the building staff, who are often caught in the crossfire of a difficult situation between a tenant and shareholders.