Even in a building with a strict no-pets policy, the board must treat "reasonable accommodation" pet requests very seriously, says Ian Brandt, a co-op and condo attorney with Wagner Berkow LLP.
"City, state, and federal law require all providers of housing accommodations (including co-ops and condos) to receive requests for 'reasonable accommodations' in any form," says Brandt. "You have to entertain any request, and accommodations have to be provided if a pet is necessary to enable a disabled person to enjoy and use the premises like an able person."
"You can't simply say, 'We're a no pet building, and every other resident complies with the policy,'" add Brandt.
To avoid the potential for lawsuits, the building should be careful to approach the process correctly. For starters, you have to receive the request in any form the resident chooses. "It could be a telephone call, for instance," says Brandt. "You can't compel them to fill out a request form, or ask in any particular way."
From there, the building is required to respond to the resident, even if they suspect the request is not legitimate. "The building has to come up with a bonafide response, saying, 'Thank you for the request, please provide us with X, Y, and Z,'" says Brandt. Specifically, the board will most likely want to ask for some sort of documentation that the pet is necessary.
"You're allowed to ask for information," says Brandt. "So if someone asks for an emotional support pet, you can ask what the disability is, and request medical records that demonstrate the need, or to speak to the doctor directly. You can also ask for follow up information, as sometimes doctors write something very cursory, such as, 'They need the dog to feel better.' You could ask, 'How does the dog help?'"
"Often, pet requests involve psychiatric issues that are not visibly apparent," adds Brandt. However, boards should keep in mind that if a resident is demonstrably disabled—for instance blind, in a wheelchair, or suffering from visibly apparent mental disabilities‚ the building can't ask for medical records to back that up. "You can't harass people who are obviously disabled," he says.
"As soon as the doctor comes forward and says the person has this disability, and these symptoms are alleviated by the pet, it's a done deal," he says. And while a building can reject a pet request it deems insufficient or illegitimate, there's a high risk of losing if the issue ends up in court. "I've had clients who challenged this law and lost," Brandt says.
One potential exception: if the pet in question somehow interferes with other residents' use and enjoyment of the premises. For instance example, a dog that engages in loud barking, phsyical attacks, or relieving itself in the common areas, could be considered an unreasonable accommodation, and grounds for the building to reject the residents' request for a pet. However, Brandt notes, "that's a high bar" when it comes to behavior bad enough to disqualify the pet. Most likely, if a resident has a reasonably behaved pet and medical proof that the animal helps them with their day-to-day living, even no-pets buildings should be prepared to make an exception.
New York City real estate attorney Steven Wagner is a founding partner of Wagner | Berkow with more than 30 years of experience representing numerous co-ops, condos, and individual owners and shareholders. To submit a question for this column, click here. To ask about a legal consultation, send an email or call 646-791-2083.