Keeping a pet when the lease says "No Pets"

[TenantNet]

So you want to keep a pet, but your lease has a "No Pet" Clause
by Karen Copeland, Esq.

Defenses to a holdover proceeding based upon the harboring of a pet in violation of a "No Pet" lease provision.

Two types of laws give an individual tenant, renter or cooperative shareholder the right to keep a pet, even if there is a "no pet" provision in the proprietary lease, occupancy agreement, house rules, or lease.

The first, and most widely known types of laws are municipal or local "Pet Laws" which deem that any such "no pet" provision is waived for the duration of the tenancy if the landlord fails to enforce the provision by commencing an action or proceeding within three months of the tenant's open and notorious harboring of the pet.

The second category of laws which would enable a tenant to keep a pet in spite of a "no pet" rule are the federal state, and local laws which prohibit discrimination against the disabled. Such laws mandate that a housing provider grant a "reasonable accommodation" necessary for a disabled person to "use and enjoy" his or her home.

Recent developments in each type of law have enabled many individuals to keep pets, even in the face of considerable opposition by Boards and neighbors. While individual co-op boards and landlords may be within their rights to enact and enforce a "no pet" clause, such prohibitions fail in the face of superseding laws which give tenants the right to keep pets in their homes under certain circumstances, which are discussed here.

The "Pet Law"

In New York City (Administrative Code of the City of New York Section 27-2009.1) and Westchester County (Laws of Westchester County Section 694), statutes commonly known as the "Pet Law" give tenants in all multiple dwellings, including cooperatives and most condominiums, as well as rental housing, and government subsidized housing, the right to keep a pet, even if there is an applicable "no pet" clause in the lease.

Under the "Pet Law", if a landlord fails, within three months of his knowledge of a tenant's open and notorious harboring of a pet, to enforce any applicable "no pet" provision, then any such provision is deemed void. The law applies to unit owners, as well as renters, in co-ops and condos, whether private or government subsidized.

When is the proceeding "commenced" for purposes of the Pet Law?

Appellate Division case law has confirmed that the proceeding is commenced by the service of the Petition and Notice of Petition. (RPAPL Section 731; CPLR Section 401) The case is not commenced by letters, or service of the predicate Notice to Cure or Notice of Termination. Thus, if the landlord fails to serve the Petition and Notice of Petition within three months of has actual or constructive knowledge of the pet, any "no pet" clause is deemed void pursuant to the Pet Law.

The exception to this rule is if the tenant lies about the pet, says he will settle the case, says the dog is only temporary, or makes any representation about the removal of the pet that the landlord relies upon that representation in refraining from proceeding to enforce the "no pet" clause. In such a case the Court may look to the date of the service of the Notice to Cure for the date of commencement of the proceeding. So, if the landlord asks about the dog the recommended response is: "It's my dog. I'm keeping it."

What happens if a tenant has had a pet for many years, but the pet dies? Can the tenant get a new pet to replace the old one under the "Pet Law"?

For years, case law had confirmed that any "no pet" clause was waived years ago by the keeping of a first pet. Once the "no pet" clause has been waived for the duration of the tenancy, it is not revived by the introduction of any new pet, whether it be a replacement for a deceased pet, a second pet, or possibly even one of a different species than the first. Recently appellate case law has limited the New York City Pet Law waiver to a "per pet" basis. In other words, the reintroduction of each new pet revives the three month waiver "Pet Law" period in which the landlord may enforce a "no pet" clause. Legislation is currently pending before the City Council to codify the "per tenancy" waiver interpretation.

In addition, recent decisions suggest that if a pet is kept for a period in excess of six years, the landlord may be barred from enforcement of a no-pet clause by the six year statue of limitations which applies to actions based upon contracts. That pet and any subsequent replacements may have the benefit of the defense of the statute of limitations if pets were kept for a period in excess of six years with no significant hiatus between pets. The landlord may be barred from enforcing the no pet provision due to the six year Statute of Limitations which applies to contracts, even if the landlord acts immediately, within the three month Pet Law waiver period to enforce a no pet clause against the second dog,

There is no requirement under the Pet Law that the permission of the landlord be sought prior to introducing a pet into the home. As long as the Board's employees and agents are aware of the dog by your "open and notorious" behavior, constructive knowledge of the pet will be attributed to the Board, or landlord, in a court of law, for purposes of determining when the three month period commences.

It's important to prove when the tenant got the pet, and when the landlord, by way of its agents and employees, became aware of the pet, and that the keeping of the pet was "open and notorious".

The following suggestions may help to prove in court when a pet first entered the building and when the landlord became aware of it.

1. The best proof is any communication from the landlord which shows that he knew of the dog or dogs for more than three months. Sometimes the landlord will even let three months pass between the time of service of the Notice to Cure and the service of the Petition and Notice of Petition commencing the holdover proceeding.

2. Another form of proof is the testimony of any neighbors who are willing to come into court to testify. the neighbors should be able to testify how long you had the dog, and if the pet were seen by the landlord's employees. (Sorry, letters and petitions from neighbors generally are not admissible in a trial.)

3. Create a paper trail of dated government documents and medical bills to indicate duration of pet ownership. Save the adoption certificate, license, bill of sale, or American Kennel Club papers you receive.

4. Bring the dog to the veterinarian immediately. Save all bills and records of inoculations, rabies tags, spaying or neutering certificates.

5. Take pictures of the pet in the apartment and in the building, and date them when you get them from developing. Every picture is worth a thousand words, so be creative. A photo of you, the dog, and the doorman next to the building Christmas display would show that the building's agents were aware of the dog at a certain point in time, for example. Every cat sits in the window: how about a photo, from the outside of the building, of your cat sitting in the window of your apartment, to prove "open and notorious" harboring of the cat? At least one case has been proven by the tenant's keeping careful photographic records of her dog's growth, from tiny puppy to full grown dog, in the apartment and around the neighborhood.

6. Save any letters or complaints from the Board or management pertaining to the pet.

7. Keep a log in a notebook, used exclusively for this purpose, in which you record any date that workers were in your apartment and saw the dog, or if the super or doorman saw the dog. Make sure that all entries are made on or near the time of the occurrence.

Anti-Discrimination Statutes

Cooperative and condo owners with a physical or mental disability are also protected by the federal Fair Housing Act and the City of New York Civil Rights Act. These laws provide that disabled individuals be given a "reasonable accommodation" to 'use and enjoy' their homes by "housing providers", including co-ops and condos. The failure of a landlord, cooperative or condo board to grant such a "reasonable accommodation" might be found to be an act of discrimination against a disabled person in violation of the aforementioned statutes.

Federal and local case law has recognized that the keeping of a pet can be such a "reasonable accommodation" under the statutes. If a tenant can prove that he has any physical or mental impairment, (and, additionally, which interferes with a major life activity, under the federal law) and has a medical need to keep the pet, which must be proven with the testimony and support of a medical professional then the landlord must permit him to keep it.

Failure of the landlord to grant such a reasonable accommodation to keep a pet is an "unlawful discriminatory practice" under the law, equivalent to refusing to put in a ramp for a wheelchair bound tenant.

The co-op board, or individual unit owner who rents his unit could be liable for compensatory and punitive damages in state or federal court, as well as hefty fines which may be levied by such regulatory agencies as the federal Department of Housing and Urban Development, or the City of New York Commission on Human Rights for failure to grant such an accommodation to a disabled tenant.

The federal Fair Housing Act, and the New York City Civil Rights Law require that a housing provider give a "reasonable accommodation" to a disabled individual to use and enjoy his or her home by keeping a medically necessary companion animal.

The term "disabled" pertains to all kinds of mental and physical disabilities, not just such obvious disabilities as blindness or paralysis. The laws also cover people with conditions such as mental illness, chronic depression, diabetes, hearing loss, AIDs, arthritis. If the tenant can prove disability, (being on Social Security Disability is probably dispositive proof of disability in itself) and prove a medical need for a pet, then the landlord must permit the tenant to keep the pet, or face punitive damages under the statutes preventing discrimination against the disabled. The medical necessity of keeping a pet may be demonstrated, for purposes of filing a complaint with HUD or the City of New York Human Rights Commission, by a doctor's note attesting to the benefits provided by the pet. Your doctor must also be willing to testify at a hearing, although such cases usually settle quickly due to the serious "down-side potential" faced by a landlord.

The law includes, but is not limited to, "seeing eye" dogs, and "hearing" dogs, but also companion animals who provide the service of emotional support to their disabled owners. For example, a key case recently before HUD fined a co-op board several thousands of dollars for refusing to grant the reasonable accommodation of non-enforcement of an applicable "no pet" clause to a tenant with chronic depression to keep her pet Yorkshire terrier, for the unconditional love the dog provides, which her psychiatrist attested that the tenant needed.

If the Board or landlord refuses permission to keep an emotional support assistance pet, or refuses to rent to a disabled person who has shown a medical need to keep an animal, the aggrieved person may file a complaint against the Board with the City Civil Rights Commission or the State Attorney General Civil Rights Office, or file a complaint in federal and state courts for punitive damages for an unlawful discriminatory practice. The statutes may also be used as a defense to an eviction proceeding.

These laws apply equally to the cooperator who rents his unit. The Board may scoff at being asked to refrain from enforcing their "no pet" rules for the benefit of a tenant with a disability such as chronic depression. Nevertheless, such a denial may cost thousands of dollars in fines and punitive damages if the tenant can prove her case to HUD, or in a federal court.

----------------
This article is intended to be of general information and is not a substitute for legal advice. If you are being sued, see an attorney at once to help you to defend yourself and assert your rights under the law.

Karen Copeland is an attorney in private practice focusing on issues pertaining to companion animals in housing. Formerly, she was a staff attorney for the Housing Litigation Bureau of the Department of Housing Preservation and Development of the City of New York. She may be reached at (212) 560-7154. Copyright Karen Copeland 1998; reproduced on TenantNet by permission, all other rights reserved.
_________________
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

[Anna]

CHAPTER 2
HOUSING MAINTENANCE CODE

SUBCHAPTER 2
MAINTENANCE, SERVICES, AND UTILITIES
ARTICLE 1
Obligations of Owner and Tenant: Duty to Repair

Sec. 27-2009.1 Rights and Responsibilities of Owners and Tenants in Relation to Pets

a. Legislative declaration. The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance. Because household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.

b. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the Multiple Dwelling Law, the Housing Maintenance or the Health Codes of the City of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.

c. It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant's rights as provided in this section. Any such restriction shall be unenforceable and deemed void as against public policy.

d. The waiver provision of this section shall not apply where the harboring of a household pet causes damage to the subject premise, 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.

e. The New York City Housing Authority shall be exempt from the provisions of this section.

****
note: Westchester county has a similar law: Westchester County Law §695.01 et seq.

[Anna]

See also brochure re Pet Law:
Keeping Spot and Fluffy Home: Companion Animals in NYC Apartments, 2003 Edition, by the Association of the Bar of the City of New York:
http://www.nycbar.org/Publications/Brochures.htm

and other Animal Rights brochures:

* Providing For Your Pet in the Event of Your Death or Hospitalization (includes new information for New York State)
* Bringing Rex Home: A Veterinarian/Boarding Kennel's Right to Hold Your Pet Because of an Unpaid Bill in New York
* Access Rights of People with Disabilities and Their Service Animals
* Animal Fighting and Cruelty Cases in New York: A Guide for Judges, Prosecutors and Defense Counsel

[Aubergine]

Keeping Spot and Fluffy Home: Companion Animals in New York City Apartments

2003 Edition

http://www.nycbar.org/Publications/pdf/Companion%20Animals.pdf

Almost two decades have passed since New York City enacted the Pet Law (§§ 27-2009.1 of the Administrative Code of the City of New York) protecting pets and their guardians, during which time courts and agencies have resolved dozens of legal issues involving the rights of New York City apartment dwellers to keep companion animals.

At the outset, people should not be discouraged by clauses in their leases that appear to prohibit pets or to require written permission. Various laws, including the Pet Law and laws protecting people with disabilities, may override no-pet clauses in leases, rendering the no-pet clause unenforceable. And the no-pet clause itself is not always as prohibitive as it seems. Unfortunately, people are often not aware of the laws pertaining to tenants and their companion animals, and may unnecessarily, and painfully, give up their pets.

Sound legal advice obtained early in the course of events is essential; if it does become necessary for the pet guardian to go to court, the chances of winning the case with attorneys’ fees awarded are often good. Knowing some of the laws yourself will help. What follows is a summary of those laws.*

Question No. 1. What is the Pet Law?

In its plainest reading, the Pet Law provides that once a pet lives in a multiple dwelling (a building with three or more residential units) for three or more months, openly and notoriously (not hidden from the building’s owners, their agents, and on-site employees), then any no-pet clause in a lease is considered waived and unenforceable.1

The law applies in New York City. Westchester County has a similar law.2 New York City Housing Authority housing, which is not subject to the Pet Law but is subject to federal law concerning pets in housing,3 is discussed in Question No. 15. Pet guardians living in buildings with fewer than three units may have other defenses that were used by all pet guardians before the Pet Law was enacted. (See Question No. 13 for more details.)

The Pet Law applies in cooperative apartments.4 However, as to condominiums, because of conflicting decisions in the courts the Pet Law does apply to condominiums in Brooklyn, Queens and Staten Island, but does not apply to condominiums in Manhattan and the Bronx! Coops and condos will be discussed in more detail in Question No. 8.

Question No. 2: What does it mean to keep your pet openly and notoriously?

“Notorious” does not mean that your pet is an outlaw. As with much legal jargon, the words “open” and “notorious” have been interpreted by the courts, and have generally been held to mean visible and apparent, i.e., not hidden. Thus, in interpreting the Pet Law, most judges have tried to determine simply whether or not the pet was hidden in any active way.

For example, in Matter of Robinson v City of New York,5 the landlord argued that because Cindy Robinson’s small dog, Miss Muffy, was paper trained and did not go for regular walks, the dog was therefore not kept openly and notoriously. The court disagreed and found that a pet does not have to go for daily walks to be open and notorious. Any other rule, the court said:

[TenantNet]

http://cityroom.blogs.nytimes.com/2010/06/23/keeping-a-best-friend-over-a-co-ops-objections/#more-185563
June 23, 2010, 11:06 am
Keeping a Best Friend, Over a Co-op’s Objections
New York Times
By ISOLDE RAFTERY

If there’s one rule any resident at 407 Central Park West knows, it’s that no dogs are allowed.

So when Donald W. Reilly, a former Marine, returned home from the Gulf Coast after Hurricane Katrina in 2005 with a beagle puppy, several of his neighbors were surprised. Several told their co-op board representative, who demanded that his landlord take action. Letters were exchanged, with Mr. Reilly explaining his situation, but nothing happened.

His situation was this: He was disabled, living in a rent-stabilized apartment, and the dog was his emotional support. He had been living in the building since 1968, long before the building converted to a co-op, and he remembered the days when dogs were commonplace in the building. Even with the co-op rule, he did not think the pup would pose a problem.

But it did. And like many disputes among apartment dwellers, there were other issues: Some neighbors said Mr. Reilly was a problem, often sawing and doing loud work into the night. After several years of back-and-forth, Mr. Reilly received word that he would have to move out by Christmas Day 2008 or face eviction proceedings.

Rules were rules, the board said, but Mr. Reilly, 71, viewed the action as discrimination. Facing eviction, he and his lawyer filed a petition with the Department of Housing and Urban Development, asking that he be allowed to keep his beagle, P. T.

Last month, he won his case, along with $6,000 in lawyer’s fees from his landlord and the co-op board.

Mr. Reilly is among 25 to 50 residents every year who appeal to the agency, asking to keep a pet as an emotional support. Amendments to the federal Fair Housing Act of 1968 allow disabled people to keep service animals in their homes, no matter the building’s rules. Emotional support animals fall into that category.

Fifteen years ago, there were few petitions to keep emotional support animals. But that changed in the 2000s, said Jo-Ann Frey, the director of the Office of Fair Housing and Equal Opportunity, a division of HUD.

“We all know about having a guide dog, so that’s not a secret,” Ms. Frey said. “But emotional support animals are becoming more prevalent.”

Caring for animals forces tenants out of their pajamas and out of the building, she said. Mr. Reilly, for example, walks P. T. twice a day to Central Park, where he socializes with other dog owners.

Securing this allowance isn’t easy, however. Doctors are interviewed, and lawyers are hired to negotiate. Landlords are often reluctant, worried that if one tenant is allowed a pet, other residents will want one as well.

“They’re not on board with an emotional support animal because they see it as a way to get around a no-pet policy,” Ms. Frey said.

Mr. Reilly’s disability dates back to his days in the Marines, when he was found to have narcolepsy, a sleep disorder that caused him to fall asleep suddenly during the day for up to a minute. He was honorably discharged. He also has diabetes and high blood pressure. He takes 10 different medications a day.

When Hurricane Katrina hit in the summer of 2005, he signed up to volunteer with an emergency response team out of Battery Park City. He knew how to run small boats.

In the Gulf Coast, he discovered unimaginable devastation ­ and came upon four abandoned beagle puppies. Unable to resist their floppy ears and pleading eyes, he scooped them up.

He gave three away to military families and kept the quietest, whom he named Pierre Gustave Tonton Beauregard, for the Confederate general. (The general’s real name was Pierre Gustave Toutant Beauregard; in French, “tonton” is an affectionate term for uncle.)

When Mr. Reilly was given notice that he had to leave his apartment, he did what he did every day ­ he talked to fellow dog owners in Central Park. Someone suggested he contact Maddy Tarnofsky, one of three lawyers in New York who specialize in pet eviction cases.

Ms. Tarnofsky, too, lives in a rent-stabilized apartment on Central Park West with her dog, a Newfoundland named Maizie. (That’s short for Miss Mazeppa, one of the three strippers in the Broadway musical “Gypsy.”)

“If someone comes to me and says, ‘I’m depressed,’ I say, ‘Go out on the sidewalk in New York City ­ 9 out of 10 people are depressed,” Ms. Tarnofsky said. “There needs to be some connection made between the presence of the animal in the apartment and the management of the person’s condition. The presence of the animal will help them to cope with their symptoms.”

Ms. Tarnofsky believed that Mr. Reilly, who pays $700 a month for his one-bedroom at the back of the building, would win his case. Since she started specializing on pet cases, none of her clients has lost a pet. She has helped people with H.I.V. and cancer, and on two occasions, for couples who could not conceive.

She filed a complaint with the Fair Housing office after Mr. Reilly’s first court appearance on the eviction proceeding.

Janusz B. Sikora, the assistant secretary for the co-op board, said Mr. Reilly’s complaint took him by surprise.

“We didn’t want to push him out of the building whatsoever,” Mr. Sikora said.

As usual, there was more to the story than met the eye, and there were issues with Mr. Reilly beyond the dog.

“He thinks the law does not apply to him,” Mr. Sikora said. “He does renovations, and he does not ask the landlord. Tenants complain about sawing, hammering and alterations. You’re not supposed to make noises after 10 p.m.”

Mr. Reilly, for his part, would move if he could afford it. He would like a bigger apartment ­ at least one more room for an office ­ and friendlier neighbors. They’re just not the way they used to be, he said, before gentrification. Back then, they said more than a frigid hello in the elevator.

Cordial relations aside, Mr. Reilly isn’t planning on leaving. Nor is the dog. The settlement allows for Mr. Reilly to get another dog after P. T., so long as it isn’t one of a long list of large dogs.

“With him around, I pay attention to him and his needs ­ I don’t worry about getting embroiled in my situation,” Mr. Reilly said. “In that regard he keeps me sane, you know, instead of spending time sitting around all by myself worrying how I’m going to pay the rent.”

He looked at P. T., who looked away.

“I know you’re not dead,” Mr. Reilly said. He laughed.

“I’m glad he’s so funny, because laughing is wonderful,” he said. “I laugh a lot because he’s around.”

He paused. “It’s a drag to sink into the torpor of not being used. If no one in the world wants you, it does nasty things to yourself.”

Christine Haughney contributed reporting.