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What’s the difference between an emotional support pet and a service animal? How can a co-op or condo board with a no-pet policy go about challenging a resident who claims her pet is one or the other type of animal?
There's no easy answer, according to Steve Wagner, a co-op and condo attorney with Wagner Berkow LLP and a longtime board member of his 420-unit Manhattan co-op.
“The rules are complicated and there are city, state, and federal laws which apply,” he says. “Each may interpret them differently—city, state, and federal governments—and they often do.”
Figure out a plan early
For starters, if the building has a no-pet rule, it's important to come up with a plan for enforcement early on, when the resident first brings in the animal, as there is a path to legalization for illicit pets in New York City. Under the city's pet law, in buildings with three or more apartments, co-op and condo boards have 90 days to start a proceeding to get rid of a pet.
“That is not always so easy because, for example with co-ops, the cooperative typically must give 30 days notice before commencing proceedings,” Wagner says. “So really the board needs to get started within 60 days.”
Otherwise, if a pet owner houses the pet “openly and notoriously,” meaning the pet is there continuously and the person makes no attempt to hide it, beyond the 90-day mark, what wasn't allowed becomes allowed.
Further confusing matters, the pet law doesn't apply to condos in Manhattan and the Bronx, but does to condos in Staten Island, Brooklyn, and Queens.
What constitutes open and notorious pet ownership is up for debate, Wagner says.
“I love the phrase 'open and notorious.' I love thinking it means the dog on Spanky and Our Gang, where the dog looks like he has a patch over his eye,” he says. “Actually it means you haven’t tried to hide the dog, you haven’t lied about the dog being there. Or if the pet is the kind of pet that stays in the house, like a cat, that there’s evidence in the apartment, like feeding bowls a cat litter box.”
Once an owner or tenant is being sued for having a pet, that's when all the laws governing service and comfort animals come into play.
The Americans with Disabilities Act protects service animals
All of the board's assessing must be done in consultation with a lawyer, Wagner says, and one of the first analyses the board must do is to figure out whether the federal Americans with Disabilities Act is a factor. The law only applies if the building is a public accommodation or receives some sort of public financing, but if it does, “You’re very limited in what you can inquire about,” according to Wagner.
Really you can only ask two questions in an ADA building, he says. One: “You can ask the person if they have a disability,” and two: whether the person has “a disability-related need for an assistance animal.”
“If the answer to both those questions is yes, the inquiry stops,” he says. “And if you continue you could be violating the ADA” and end up paying damages. Also, “If the disability is obvious—if someone is blind or has a wheelchair, you can’t even ask the first question.”
The Fair Housing Act protects service and comfort animals
If the ADA is not in play, the federal Fair Housing Act, which carries its own set of disability protections, still is.
To mount a service animal defense under the FHA, a resident facing a challenge must show the she has “a disability involving one or more major life activities,” Wagner says, “and that the pet, a service animal or a comfort animal, will aid in the resident’s use and occupancy of” the apartment.
Federal rules distinguish service animals from comfort animals on the basis that service animals are professionally trained to perform a specific function related to one’s disability, whereas comfort animals are not specially trained or certified.
New York City and state laws are even broader
New York City and New York state’s are looser and do not require proof of training for an animal to be protected. The city human rights law, for example, says that to make a claim, as Wagner explains, a disabled resident has “to show that they have a disability which impedes the use and enjoyment of their home, and they must establish a fact-specific nexus between their disability and their comfort animal.”
Proving a disability
Mental disabilities are covered under these federal laws as well as physical ones, and a comfort animal like the kind allowed under the FHA and city and state law could simply assuage one's anxiety, for example. Documentation to support any of these types of claims would typically come from a medical professional. To hold up, a medical note must be specific to the person's situation and apartment, Wagner says.
“Not every statement is good enough,” he says. “It has to say that there’s a disability and the comfort pet is necessary for the patient’s use and enjoyment of the apartment. It can’t just be broadly” that people suffering from a certain condition benefit from having a pet.
Mountain lions don't get a pass
Not covered under these protections are animals defined as wild by the city health code, such as large cats, monkeys, and pigs. Also, even if a pet is officially a service or comfort animal, it can be subject to removal if it's a nuisance.
“If you get a comfort animal or a service animal and the dog bites people or scares people or is unable to regulate its elimination of waste, or barks all night repeatedly over and over and over again and would constitute a nuisance, then even though that dog or other animal is a comfort animal and permitted under the ADA or FHA or the city and state human rights laws, the co-op or condo does not have to live with that animal,” Wagner says.
This is all useful as a rule of thumb, but there is a great degree of nuance in the application of each of these intersecting laws.
“Each case is very fact-specific. My general advice to my clients is not to try to figure out if somebody’s disabled enough to meet their own personal criteria,” Wagner says. “Don’t get into whether or not that person is disabled enough to need a dog. That is a slippery slope” and could cost the board big-time should it choose to pursue that line of questioning.
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.