Hidden Traps in Pet Policies: A Warning to Boards

Enforcing pet policies in co-ops and condos can feel like walking through a legal minefield. From tight enforcement deadlines to complex accommodations for service and emotional support animals, board directors face high-stakes decisions that could lead to costly litigation if mishandled.

Attorney Kenneth Finger, a member of the law firm Finger & Finger, offers board directors essential insights into navigating the complex intersection of pet policies and legal requirements in New York co-ops and condos. The conversation reveals critical timing requirements for enforcing no-pet policies and explores the nuanced landscape of service animals and emotional support animals (ESAs). Habitat's Emily Myers conducts the interview.

Key takeaways for board directors:

* The 90-day rule is absolute: Boards must take court action within 90 days of discovering an unauthorized pet, or they permanently waive their right to enforce the no-pet policy for that animal's lifetime. 

* Service animals vs. ESAs have different standards: While service dogs (which must be specially trained) cannot be refused, emotional support animals require more documentation but can be any species. However, boards cannot restrict size or breed in either case.

* Documentation requirements for ESAs should be thorough: Boards can request vaccination records, licensing, and legitimate medical documentation. They can challenge questionable medical certifications but should be prepared for potential human rights complaints.

* Enforcement carries financial risks: Challenging ESA requests can lead to expensive litigation, insurance complications, and potential damages if the board loses. Boards must carefully weigh these costs against enforcement benefits.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Emily Myers: Welcome to Legal Talk, a conversation about the governance issues facing New York's co-op and condo boards. I'm Emily Myers with Habitat, the magazine for New York City's co-op and condo board directors, and I'm joined by Kenneth Finger, member at the law firm Finger and Finger. 

Many co-ops and condos have pet policies, and it falls to the board to enforce these rules, and that can sometimes lead to legal complications.

Kenneth, can you explain why? 

Kenneth Finger: Yes. Basically most co-ops and condos have a quote, "no pet," end quote, policy, not all, but most. And that then runs afoul with a provision of the law that talks as to a waiver, if you don't object to the presence of a pet. Technically within 90 days after discovering the presence of the pet, New York City has a specific law, and we're dealing basically with New York and Westchester County that also has a law.

So the essence of that law is that if you have, for example, a dog, and that dog is open and notorious, and the board or the co-op or the condo does not take action within 90 days, and that means court action. Then the co-op and condo are deemed to have waived the right to object to the pet, or in that case, generally the dog, and the particular shareholder or unit owner can stay with the presence of the pet for as long as the pet is alive, once you miss that 90 day time limit. That is an absolute requirement of the 90 days, and in essence, it means that the board has to act and bring it to court within the 90 day period. If you are not in court, within the 90 days, you're dead.

And this makes it somewhat difficult. Also generally have to be notices served in advance. So if you are a member of a board, and you then determine whether through your a member or through the person walking the dog on the premises or the superintendent coming in the apartment and making a repair and seeing the dog.

If you don't act and serve that notice and get into court within 90 days, you have waived the right to object to the presence of the dog. 

Emily Myers: So that obviously would contradict the no pet policy. So how do boards assert their authority then in these situations? 

Kenneth Finger: What they have to do is be extremely careful about the inspection of units if they do it, about seeing whether or not there are animals or dogs on the premises.

You may have a complaint, for example, from a neighbor. That neighbor hears barking. And that may generate an investigation by the board. And once you then determine that there is a dog on the premises, you then have to start the notices and make sure you're in court within 90 days. If you don't actually go to the local landlord tenant or the housing court within that period of time, and you don't have the time for the notices, you might have to bring a Supreme Court action to compel compliance with the no-pet policy.

So it does generate activity on behalf of the board. And the ability of the board to be very careful as to the presence of animals on the premises. 

Emily Myers: Are there any specific cases where boards have chosen to litigate these pet related issues? 

Kenneth Finger: Yes. We've had quite a number of cases over the years where there are basically issues that come up as to number one, whether or not the person wants to utilize the Fair Housing Act or the Human Rights Law as an exception to having an animal on the premises. And let me indicate that there are essentially two types of situations that we're involved in. Number one, you might have a situation with a service dog. Now a service dog has to be a dog that is trained for a particular purpose, such as a seeing- eye dog, a dog that can react to pre epileptic fit or something of that nature. And a service dog would be admissible essentially in most public accommodations. But also there would be nothing that the board, co-op or condo could do to keep out the service dog, whether or not there is a no dog provision in the bylaws or not.

The second situation that arises and that is much more frequent, is what we generally refer to as an ESA or an emotional support dog. Now, there's a situation where it's somewhat flexible, in terms of the fact that the emotional support dog, does not have an automatic entrance, let's say to the unit itself or automatic right to stay in the unit as with a service dog. But certain things have to be shown. In a service animal, we've talked about, it has to be a dog. It could be any breed, but it has to be trained to perform a task directly related to the person's disability.

Emotional support dog or animal. It could be any type of animal. It could be a ferret, it could be a cat, it could be an alligator. It could be anything that the person needs for the support in order to use and enjoy their apartment. Generally in order to have the permission granted to have a emotional support animal, you have to show some type of disability. It could be a mental disability, such as anxiety or some type of mental illness, or it could be a physical disability. 

Emily Myers: And presumably this requires additional paperwork.

Kenneth Finger: Yes. Generally we, and many of the attorneys require an application. Where you might have to agree, for example, that you'll comply with most aspects of the co-op's policy, such as walking the dog on a leash; not allowing the dog or the animal to defecate or urinate on the premises; to clean up after the dog; not having the dog or animal create a nuisance such as barking, howling, scratching, or any other misconduct or creating a noxious odor or something of that nature. So all these things would be still required of the shareholder or unit owner to comply with the rules of the cooperative. What we do when we have a request for an emotional support animal is we have what we call a registration form or a reasonable accommodation application.

If it's a dog, we wanna make sure that the dog is vaccinated, that the dog is registered, that the dog is licensed. We might want a picture of the dog. Now I will put a caveat there that with both these situations, you cannot limit the size or weight of the animal. So in emotional support, you might have in a small apartment, a German Shepherd.

People might think that is not appropriate, but is something that the law allows.

Emily Myers: And presumably an applicant also needs to provide a letter from a medical professional or a treatment provider. 

Kenneth Finger: You would need some sort of proof that you have the appropriate disability that allows you to circumvent the no-pet policy of the co-op or condo. And that type of proof would be either a doctor's note or a medical professional's note, or a mental health professional's note. Now, there are some type of organizations or entities that for 75 or a hundred dollars will issue that type of note for the particular shareholder. We generally will check into it and see whether or not the person has actually been a patient and there is legitimate basis for the note from the professional, whether it be a medical professional or a mental health professional. And if it is legitimate, we accept it. We've had a situation where someone never saw the shareholder and wrote a note from Florida and it was a generic type situation and we rejected it.

Now if you're going to reject the, that type of situation, you have to be prepared that the shareholder may well file with Human Rights or the Fair Housing Commission and file a complaint against you. So you have to be ready and aware to defend it, also, defend the fact it may not be such that the shareholder can prove that is for the use and enjoyment of the apartment.

Emily Myers: So what are the takeaways then here for boards on this issue? 

Kenneth Finger: The takeaway, in terms of saying no is that number one, you may have to turn it over to your insurance company to defend if there is a complaint, and that may be a detriment to you.

You may not have the insurance company involved. Or alternatively, you may want your own counsel or your retained counsel defend against a complaint. And a complaint could be a lengthy process, which could be rather expensive. You may have to go through formal legal proceedings, discovery, a possible hearing, and that could be quite expensive. If, for example, you're questioning the bonafides of the person's complaint as to their physical, emotional, or mental disability, it may require bringing in expert testimony. If on the other hand, your defense is that the person doesn't need the animal for the use and enjoyment of their apartment, there may be other legal aspects that may cause you to incur legal and other costs and expenses. And any time you're involved in litigation, it can be quite expensive and it can go on for a period of time and you could be stuck with legal fees and you could possibly, if you lose, be stuck with damages in favor of the complainant.

Emily Myers: Gosh, it's obviously an issue that boards need to take very seriously. Kenneth, thank you so much. 

Kenneth Finger: Thank you very much. 

Emily Myers: Kenneth Finger, partner at the law firm Finger and Finger.

Kenneth Finger: It was nice talking to you, Emily. 

Emily Myers: And you, Kenneth.