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How to update your co-op or condo building's pet policy

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Question:

We're ready to update our building's pet policy. Based on the experiences of other co-op and condo buildings you work with, what should we be sure to include (or not include)?

Answer:

"Any change to a building’s pet policy has the potential to rankle apartment owners like few other changes a board can make," says Steven Wagner, a co-op and condo attorney with Wagner Berkow LLP and a longtime board member of his own 412-unit Manhattan co-op. "After all, pets are members of the family.  In fact, a family dog or cat may be the only member of the family that everyone gets along with."

Boards have broad discretion and powers in establishing pet policies which are derived from either the proprietary lease in the case of a co-op, or the by-laws in the case of condominium.  That said, there are several provisions in the law which also impact what a board can and cannot do to regulate man’s best friend.

Pet Law Basics

New York City has a “pet law” that requires a landlord to commence proceeding within 90 days of the date the landlord discovers or should have discovered a pet is being harbored in an apartment. This rule is in every lease, and allows tenants who have harbored a pet “open and notoriously” for 90 days to keep the pet, even if the lease prohibits it.

"This rule always applies in co-ops, as well," explains Wagner. "But the question of whether this pet law applies to condominiums depends on where you live:  In Manhattan and the Bronx, the law does not apply to condominiums, while in other counties within the city, the law does apply.  Often the issue in these cases is determining when the 90-day period started."

Keep in mind that it is not enough to simply send notices to a co-op owner who is illegally harboring a dog.  The law requires that an action or proceeding be commenced within the 90 day period.  

"A board really has to be on its game and take action quickly because the predicate notices can require as many as 40 days to allow service of a notice to cure and a notice of termination before the co-op can go to court," says Wagner.  "It's also a good idea when formulating pet policies to 'grandfather' in pets who have been in the building for more than 90 days to avoid legal headaches."

The second pertinent law – actually laws – are the City, State and Federal human rights laws.  These laws require co-ops and condos to make “reasonable accommodations” for persons with disabilities.  The right to inquire about the nature of the disability is limited, and varies depending on whether the pet in question is a service animal or emotional support pet (more on that here). 

If a resident of a co-op or condo obtains the appropriate confirmation that a service animal or comfort animal is required for the resident’s health, be it physical or psychological/emotional, the rules prohibiting pets are superseded by the requirement that a reasonable accommodation must be made.  There are recent instances in which fines and damages in excess of $100,000 have been imposed against co-ops that have refused to make reasonable accommodations for an emotional support dog.  A service dog is not considered a pet. 

The third law is a New York City one that requires owners to clean up after their dog and to property dispose of the pet’s waste, and the fourth law requires all dog owners to license their dog. For the latter, health code also stipulates that owners attach a license tag to their dog’s collar when they’re out in public.

What to include in your pet policy

The statutory requirements above do not strip the board of all of its power to prohibit or regulate pets.  Boards can establish rules and policies that may be enforced even against a pet who has been in the building for a significant period of time.  Based on Wagner's years of experience on his own board and working with clients, here are 12 provisions any savvy board will keep in mind when putting together (or updating) its pet policy: 

1. Building registration and fees. Most buildings that allow pets require that the pet be identified and registered with the building.  A photograph and other relevant information about the pet is usually included with the registration.  It is not uncommon to have reasonable pet fee (generally around $50 to $100)  paid when the pet is registered or re-registered as the case may be.

2. Inoculation and governmental registration. Most policies require the dog to have received all necessary shots and be registered with the appropriate governmental agency.  If the pet is a service dog or a comfort dog, there are certificates available to pet owners to demonstrate the pet is qualified as such. 

3. Restrictions on breeds. This may be controversial, but it is not illegal to prohibit breeds like pitbullsthat are considered particularly aggressive and dangerous. 

4. Restraints in public areas. Many policies require that the pet be on a leash or carried when entering or leaving the building. Often pet owners are required to use a service elevator if one is available in the building.   Service animals are required to have harnesses or collars by law.

5. Restrictions on size. Often dogs exceeding a certain weight are prohibited.  The weight limit most commonly used is 40 pounds.  It is not clear why this particular weight is the cut off, but it may be a good reason not to give your beloved pet an extra treat, although because of the “pet law” it is unlikely that a zaftig dog who started as a cute little puppy would subject a co-op owner to eviction proceedings.

6. Obedience training. Not often seen, but sometimes required if a pet has been making too much noise or otherwise acting in an unsuitable manner. 

7. Prohibition against objectionable conduct.The policy may broadly prohibit dogs who are a nuisance and use as examples uncontrolled barking all day or every time someone walks down the hall on the floor where the dog lives, jumping on people or growling and snapping at people, repeated incidents of the pet relieving itself in the building to name a few.

8. Insurance and indemnification. Not all apartment owners have insurance.   With a pet, the owner could be required to demonstrate there is insurance in place and to indemnify the building, its board members, employees and residents against any liability or damages caused by the pet. Additionally, the co-op or condo should specifically require that the resident's insurance policy covers the building against any claims connected to the pet.

9. Prohibition against replacement pets. A clear statement that approval of a particular pet is not an automatic approval of all subsequent pets.  Once again, it depends on which county you live in as to whether the law requires the landlord to accept a successor to a deceased pet.  As noted above, often photographs of the pet are required when the pet is registered so that a replacement pet is not snuck into the apartment when an approved pet dies.

10. Restrictions on dog walkers. Some buildings do not allow dog walkers to enter the building with other animals when picking up or dropping off the pet.

11. Requirements of proper waste disposal. Rules requiring pet owners to curb their dogs and to remove waste material in accordance with the law are not uncommon.

12. Limit on the number of pets and on “guest” pets. Although not that common, there are buildings that restrict the number of pets permitted in an apartment and from allowing “guest” dogs or cats not registered with the building and otherwise satisfying the requirements of the building’s pet policy.

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.

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