Pet Policies – Make Sure You’re Not Barking Up the Wrong Tree

Landlords and Board members have the discretion to establish and enforce pet policies for their residents. This can be done through the terms of a lease – either a traditional rental lease or a cooperative’s proprietary lease. While Boards and landlords have power to create and enforce pet policies, federal, state, and city laws may stand as barriers from enforcing those policies.

New York City Laws

One such law is the “Pet Law” or the “3-month rule”. Under New York City’s Pet Law, despite “no-pet” clauses in a lease, if: (1) a tenant has kept a pet “openly” and “notoriously”; (2) the landlord or Board knew or should have known of the pet’s existence; and (3) the landlord or Board did not commence a court case within three (3) months of gaining knowledge of the pet, the right to enforce the pet policy with respect to the particular pet is deemed waived.

The Pet Law applies to tenants with leases in buildings with three (3) or more residential units. Because co-op buildings have proprietary leases, New York courts have held that the Pet Law applies to co-ops as well provided the co-op has three (3) or more residential units. Whether or not the law applies to condominiums is less clear. Condominium boards do not have the right to commence summary proceedings to regain possession of the units of pet owners, but they do have a right to commence an action based on nuisance.

Federal and State Laws

There are federal and state barriers as well, specifically, the Federal Fair Housing Act and its state counterpart, New York State Human Rights Law. Both statutes require landlords to make a “reasonable accommodations” for tenants with physical or mental disabilities. “Reasonable accommodations” may include pets like a seeing eye dog or, in some circumstances, pets that provide emotional support. Tenants invoking their rights to have an emotional support animal must demonstrate that he or she has a covered disability and such disability requires an assistance animal. Tenants must also provide reliable documentation of their disability-related need for an assistance animal.

Notwithstanding a documented need, landlords and boards may deny a request for an emotional support animal if: (1) the assistance animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the assistance animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

In addition, tenants and pets may be evicted if the pet is found to be a nuisance. While one isolated incident is not enough to justify a nuisance claim, repetitive behaviors such as frequent urination or defecation in the hallway or lobby, constant barking, attacking other tenants, or strong odors coming from the tenant’s apartment may qualify as a nuisance.

It is important for landlords and Board members to be mindful of federal, state, and city laws when it comes to enforcing pet policies. Determining whether or not a tenant is allowed to keep a pet should be reviewed on a case by case basis and action should not be taken without reviewing all of the pertinent facts.