NYC Pet Laws Put Landlords In A Bind Between Accommodation And Abuse

More than a million New York City residents walk on four legs. Pets have become a ubiquitous part of city life, and now, dogs and cats are taking on the last bastion of fur-free space — buildings with no-pets policies.

The internet is abuzz with colorful articles that tout a "legal loophole" that allows NYC tenants to keep pets even in no-pets buildings. But, what was good news for pet owners has become a source of headaches and drawn-out courtroom battles for landlords caught between the city’s laws surrounding reasonable accommodations and a growing number of tenants who circumvent or flout landlords' no-pets policies.

"Even when landlords are completely in the right, these cases can be tough to litigate," said Rosenberg & Estis Senior Litigation Partner Bradley Silverbush. "There is no way for an NYC landlord to ban pets altogether: Exceptions must be made for people who may legitimately require accommodation. Landlords should seek legal counsel to help draft an accommodation policy and be sure that building staff know to immediately report any unauthorized animals."

Landlords in New York state are free to choose whether or not to ban pets from their buildings. However, anti-discrimination laws mean that landlords must make reasonable accommodations for tenants who require service animals like seeing-eye dogs or, in some cases, a pet that provides emotional support. 

Much of the problem, Silverbush said, stems from a lack of legal clarity around what constitutes emotional support. Dozens of websites offer kits to certify dogs, cats, birds and even foxes as emotional support animals. Although landlords can ask what services the animal performs, they cannot ask what disability the tenant suffers from.

Denying a request for accommodation can be risky: Applicants can file a complaint with NYC’s Commission on Human Rights, and proof of discrimination can mean a $250K fine, not including damages awarded to the resident.

Landlords face another constraint: a limitation on the time in which they can enforce a no-pet provision. If a tenant harbors the pet "openly and notoriously" for a period of three months, and the landlord fails to commence legal action within that time, the landlord is deemed to have waived their right to enforce their no-pet provision. 

Afterward, the provision can be enforced only if the pet is creating a nuisance, and Silverbush said the threshold for what entails a nuisance is surprisingly high, even for a city as loud as New York.

Silverbush explained that these pro-pet laws are a logical extension of rent control legislation, which was passed in the 1940s with the goal of protecting tenants from unscrupulous landlords who might otherwise evict tenants on any ground they could find, including having a pet where a lease forbids it.

But pet-based discrimination claims are making more and more frequent appearances before the New York City Commission on Human Rights, Silverbush said, thanks to a new generation of pet owners who are pushing the boundaries of what their landlords will allow or simply abusing their landlords’ good faith.

"The biggest problem we are seeing now is tenants out-and-out lying on their lease applications," Silverbush said. "An applicant might swear that they don’t own a pet in five places on an application. But shortly after leasing to them, the landlord discovers they’ve been smuggling in a teacup poodle in a pocketbook. You might think that perjury on an application would be automatic grounds for eviction, but it’s not. The law, and also time, is on the tenant's side."

The NYC Commission on Human Rights has a massive backlog of pet cases, Silverbush explained, and it can take months to investigate whether there is probable cause to find discrimination. As the suits drag on, tenants’ leases sometimes expire on their own, meaning landlords have spent tens of thousands of dollars in legal fees without anything to show for it.

"Tenants know that it can be prohibitively expensive for their landlords to take them to court over pet disputes," Silverbush said. "Pet ownership is increasing, but pet owners are also becoming bolder."

Silverbush detailed one case he litigated in which a tenant claimed her dog was a service animal because it could identify and retrieve medications in an emergency. While that would seem a just cause for reasonable accommodations for someone with epilepsy or another acute health issue, it came out that the plaintiff did not actually use any medications. 

Silverbush asked the court to throw out the case, but he was refused.

"I’m a dog person — of course there may be legitimate reasons for tenants who want a pet around for support or companionship," Silverbush said. "But there are still many reasons that tenants might not want pets in their buildings, say if they have severe allergies or a debilitating fear of dogs."

Silverbush said landlords should work with an attorney to draft and disseminate their own policies for reasonable accommodations for pets. Making sure that prospective tenants know the details of the policy — and that it will be enforced — is the best defense against being victimized by a bogus claim.

He warned, however, that landlords should not write these policies on their own, because the laws change; he has seen landlords taken to court for inadequate reasonable accommodation policies. 

"Pet ownership is rising," Silverbush said. "And landlords who don’t prepare now could find themselves on the wrong end of pet-related issues, or worse, embroiled in an endless legal battle."

This feature was produced in collaboration between Bisnow Branded Content and Rosenberg & Estis. Bisnow news staff was not involved in the production of this content.