Many New York City common interest community unit owners consider their pets to be members of their families. At the other end of the spectrum are people who may have violent allergic reactions when they come into contact with dogs, or who just prefer not to share the condominium’s common elements and living space with someone else’s four-legged friend. The boards of directors of cooperatives, and the boards of managers of condominiums, weigh these competing interests and try to enact and enforce pet policies and rules that best serve the residents of their buildings while also taking into account applicable laws.
The focus of most pet policies and rules enacted by cooperative and condominium boards is dogs. Some of the more common rules require dogs to be kept on leashes while in common elements, prohibit dogs in elevators, limit the number of dogs per apartment and limit the size of permitted dogs. In most cases, a majority vote by a board is sufficient to amend these rules and policies, and to completely prohibit dogs.
Enforcing policies and rules relating to dogs is often more difficult than passing them. To a large extent, this is due to Section 27-2009.1 of the Administrative Code of the City of New York, which is commonly known as the "Pet Law." The Pet Law was originally passed by the New York City Council in 1983 to prevent landlords from trying to use "no-pet" clauses in Rent Stabilized leases as a pretext for commencing eviction proceedings against tenants with below market rents who coincidentally had pets. In basic terms, the Pet Law prohibits landlords from enforcing "no-pet" clauses in leases against tenants who have "openly and notoriously" harbored a pet for a period of three months or longer.
A significant body of case law involving various courts’ interpretations of the Pet Law has evolved in the cooperative and condominium context. Based on this case law, it is clear that the Pet Law applies to cooperative proprietary leases and house rules. More specifically, if a cooperative’s board of directors fails to commence legal action to remove a dog from a shareholder’s apartment that has been kept "openly and notoriously" in violation of the cooperative’s policies or rules for three months or longer, then the cooperative board will usually be prevented from removing the dog pursuant to the Pet Law.
There are many cases where courts have interpreted the meaning of "openly and notoriously." Each case is fact specific, but in broad terms the courts have held that as long as one member of a building’s staff is aware that someone is harboring a dog in his or her apartment, then such knowledge is imputed to the building’s board and the "openly and notoriously" requirement of the Pet Law is satisfied. It is important to note that a board must commence a lawsuit within three months of its actual or imputed knowledge of a dog being illegally harbored in an apartment in order to defeat a Pet Law defense. Sending a warning letter or a notice to cure is not sufficient.
It is also important to note that even if a Board fails to commence a lawsuit within the three month window required under the Pet Law, this will not prevent a Board from removing a dog whose behavior is causing problems in a building. The Pet Law specifically states that it will not be applicable where the harboring of a pet causes a nuisance or interferes with the health, safety or welfare of a building’s other occupants.
Interestingly, whether the Pet Rule applies to common interest community boards and condominium unit owners depends where the unit property is located. There is a split in the decisions by the appellate courts that cover different geographic areas of New York City. The appellate court that has jurisdiction over Manhattan and the Bronx has ruled that the Pet Law does not apply to condominiums. On the other hand, the appellate court that has jurisdiction over Queens, Brooklyn and Staten Island has ruled that the Pet Law does apply to condominiums. Eventually this split will probably be resolved by the State’s highest court, the Court of Appeals, or by the City Council.
To complicate things a little more, there are additional Federal, New York State and New York City anti-discrimination laws relating to individuals with disabilities. These laws may trump a board’s right to remove a dog, even where a dog is kept in violation of a properly enacted policy or rule and the board seeks to timely enforce such rule within the three month window provided under the Pet Law. The penalties for violating these anti-discrimination laws are severe and may include the assessment of fines, punitive damages and an award of counsel fees. However, only a very narrow class of people with dogs fit into the protected categories under these statutes.
In conclusion, a cooperative or condominium board (in Queens, Brooklyn or Staten Island) that fails to commence legal action to remove a dog that is being harbored in violation of its buildings’ policies and rules within three months of its discovery will probably be barred from enforcing such policy or rule pursuant to the Pet Law. Notwithstanding whether the Pet Law is applicable, a Board may be barred from removing a dog under the anti-discrimination statutes relating to people with disabilities. It is recommended that you consult with legal counsel with regard to any pet-related issues, especially to the extent that disability-related issues are present.