Paula Chin: Welcome to Legal Talk, a conversation about governance issues that New York's co-op and condo boards are tackling today. I'm Paula Chin with Habitat, the New York City magazine for co-op and condo board directors. My guest is Carl Finger, a principal at the law firm, Finger and Finger. There has been a surge in the demand for emotional support animals among owners, which has created new headaches for co-op and condo boards, especially in buildings with no-pet policies.
That's why it's important for boards to know what kind of proof they are entitled to and when they can and can't say no to requests from residents. Carl, let's start with the basics. What kind of documentation do boards, are they entitled to?
Carl Finger: Oh, thanks, Paula. Basically, we are looking for boards to have, initially, just to have a policy in place and be aware of the distinction between an ESA, an emotional support animal, and a pet. An emotional support animal's not a pet. Once you start recognizing that distinction and you put in a policy that allows you to comply with the law, you're on, you're off, you're off to the right start. The main criteria for anybody to obtain an emotional support animal is to establish that they have a disability under the Fair Housing Act and Amendments, or the Americans with Disabilities Act, and that they need that emotional support animal to use and enjoy the apartment or condominium unit, et cetera.
So if they can meet those two criteria and generally require, that requires some, either medical documentation or a letter from an appropriate service provider to them, that is sufficient and we, if they don't have that, we hope that the policy has some forms that the property manager, board can provide to the person so that they can in fact make a proper application.
Paula Chin: My understanding is that there are a lot of fake documents out there. Is there something that boards and managing agents should look for? Should they forward it to their attorneys? What can they do to not get duped?
Carl Finger: Yeah, that is a problem. Needless to say. However, I think you can verify the, that the person writing the letter is in fact a professional.
If you're not sure, it's always advisable to consult with either the property manager if you have one, because they may be familiar. And certainly seeking counsel earlier rather than later in the process will allow you to get that legal advice on a specific issue in a timely fashion. You don't wanna delay and have a person file a complaint because you've taken too long to respond, and indicate that is a deemed denial or something of that nature. So getting that extra advice quickly is something that can often help avoid a problem in and of itself.
Paula Chin: And my understanding is that window of time to respond is pretty narrow. Is that right? Again, what do boards need to know? How quickly do they have to respond to a request?
Carl Finger: There's no specific window, except if you know somebody has an animal, a dog, within, and you don't get into court within 90 days, whether they have a disability or not, generally they keep the animal. So 90 days is something to keep your eye on. But we would of course hope that if you got a request for an emotional support animal, you responded quickly. You don't wanna wait 90 days, you don't wanna wait a month. You don't want people thinking that you're denying their application because it might be a perfectly adequate application and you suffer. Or it might even not be an adequate application, but you get stuck with a complaint before a Human Rights Commission simply because you are lax in responding.
Paula Chin: So let's say a building has a no pet policy-- understand these emotional support animals don't fall under that category-- but let's say residents are used to not having animals around and an emotional support animal might cause them problems. What can boards do when that happens?
Carl Finger: Certainly there are a lot of protections in your bylaws, in your lease.
Proprietary lease, if you're a co-op, that would apply even to an emotional support animal. Just because you have an emotional support animal does not mean that you can violate the rule, the other rules. So noise is a fairly common one. If we have somebody who has an emotional support animal, but for whatever reason the dog is barking incessantly all day, that's something that can be dealt with.
It's critical that you have verification of the complaint of barking. We like to look for more than one neighbor complaining, especially something where multiple neighbors should be hearing it. We like to have those people document by keeping a log of the dates, times of the noise, how loud it is, how often it is, how long it lasts, things of that nature, and then, once you have that documentation and hopefully willing witnesses, you can move forward with a proper legal action or perhaps just a letter to start with and see if something short of legal action gets the problem resolved.
Paula Chin: Do you have some stories from the front or clients that have run into this problem and how did they deal with it?
Carl Finger: Sure. We've had the good, the bad, and the ugly. We've had some successes with some of those problems. We had a dog that was, or I should say a unit owner that was walking their ESA in an area where children played commonly and we asked them to walk the dog somewhere else. They did make a complaint to Human Rights. Ultimately, because we had good documentation and because they didn't require an accommodation for where they were walking the dog, we were able to get that complaint dismissed. The combination of being aware of what the accommodation that they need is, combined with what your issue is, help to get that favorably resolved.
And we've had similar issues with noisy dogs. We had one where the dog bit a few people actually, and we were able to resolve that one short of litigation, short of any complaint, really just by writing a letter, explaining to the shareholder. And the shareholder recognized the problem and dealt with it.
There are different ways that can be dealt with, and we had a discussion about what those ways were. In this case, the shareholder removed the dog, but in other cases we've seen people use a muzzle or something of that nature. So part of the part of it is trying to listen to each other and reach a resolution which solves a problem.
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Paula Chin: imagine there may have been cases where a board might suggest, say, training for the dog. Has that ever happened, at the owner's expense?
Carl Finger: Sure. We've had the dog whisper type of proposals from shareholders where there's a problem. And the key there is I think, not just working with them and allowing them the opportunity, but then the follow up.
Because certainly going and taking the dog and trying to get some additional training can help, but you have to have something in place to, what's gonna happen if it doesn't help. And we try to get these types of agreements down to writing so that everybody knows what their responsibilities are and everybody knows what the ramifications are if they don't meet their responsibilities.
Paula Chin: Okay. What about ugly cases where, let's say, a dog is doing something more offensive, and despite the board approaching the owner in a very measured and good way. Or they come to an agreement and the owner doesn't keep up their end of the bargain, what happens then?
Carl Finger: Ultimately the board, if the, unit owner, shareholder and their emotional support animal really are violating the rules, the board does have the option to-- in a condo, it's a little more complicated. In a co-op, you can terminate the lease and take the person to court. That's not ideal, obviously, but we've had a few of those situations, and we even had one situation. We represented a, actually the person with the disability and the emotional support animal, and the resolution was the co-op, actually, we had an appraisal done and the co-op bought back the unit from them for the value. And that was beneficial to everybody because the, the shareholder, proprietary lessee, received the value of the unit without having to get a broker and pay a broker's commission and go through all those expenses, and the board was able to resolve what was going to be a clearly a time consuming and lengthy litigation without expenditure of legal fees.
Paula Chin: Carl, it sounds like the takeaway for boards is that one, when there's a problem, they arm themselves with the right ammunition in terms of, as you said, written complaints, things where they've documented what's going on, but also that instead of litigation, they try to come up to it with a resolution.
Would you say that's the two main things that boards should do?
Carl Finger: Sure, and I think early, dealing with things early, promptly, helps. Getting legal counsel early and promptly will help. And being creative in your thinking can also help. So I agree with all of that. And communication, obviously, direct communication helps because if people don't communicate, you can't get to that resolution.
And if you can get to a resolution short of litigation, that's always beneficial. But if you can't, I think that-- and the board is convinced that there's a real problem here-- litigation has to be an option. It may not, shouldn't be the first option, but it should be on the table to make sure that all shareholders can reside peacefully in their units.
Paula Chin: Carl, I think this has been really informative. Thank you so much for joining us.
Carl Finger: Thank you.