When a Dangerous Dog Prevents Emergency Access to an Apartment
May 22, 2012 — The standard co-op proprietary lease provides that co-op staff shall have access to make emergency repairs "at any time and without notice"; can use the apartment's keys to do so; and can break in if the keys are not available or if they do not work. Condominium governing documents generally have similar provisions. An apartment owner should not be able to undermine the co-op board or condo association's ability to so act by leaving a dangerous dog free to attack staff as they enter.
The problem, of course, is that no dog owner can be expected to muzzle or restrain his dog while it is alone in the apartment based on the remote possibility that emergency access might become necessary on any given day
Here are two standard avenues for boards:
- Require apartment owners with dogs to provide current work and cell phone numbers to the co-op so that building staff can reach out to an owner if access is necessary, and arrange for the owner to quickly come home and provide safe access.
- Make it plain to apartment owners with dogs that if they do not to the above, the co-op will have no choice but to summon the police or the dog control authorities, and that this might result in the dog being removed and the apartment owner paying any associated costs.
Using the Dog Law
There are a few other ways for the questioner's co-op to get at the problem of the existing dog. One is the exception in the Dog Law "where the harboring of a household pet causes damage to the subject premise [sic], creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure." So if the dangerous dog interfered with the emergency repair leak, then arguably this section could be invoked and the questioner's co-op could demand removal of the dog.
The problem, of course, is that the dog's owner would counter that the need for the emergency repair was an isolated occurrence, which, in itself, likely falls far short of the sort of recurrent misconduct that the nuisance and related grounds require. So, only if the dog has caused disruptions in and around the building beyond interfering with the emergency repair, or on multiple occasions regarding repairs, could the co-op start to build a case for this.
"Objectionable Conduct"
One other possibility is for the co-op to declare the apartment owner's conduct objectionable in effectively preventing or delaying the emergency repair of the leak, and warning him that the co-op will vote to terminate his tenancy if something similar recurs. This might encourage the owner, at the very least, to provide the contact information mentioned above.
In the end, co-ops and condos can exclude dangerous dogs in their pet policies, even if the policy is otherwise quite permissive. And the number of dangerous dogs will inevitably diminish over time, because current case law tips against allowing a tenant to replace one dog (whether dangerous or not) with another.
Robert Tierman, a longtime co-op and condo attorney, is a partner at Litwin & Tierman
For more, join our Archive >>