Why Do I See Dogs in My ‘No Dog’ Building?

Many people specifically seek residency in pet-free buildings for a variety of reasons. So when they start to hear dogs barking or see dogs coming and going in their building, they question the enforcement of the building’s “no-dog” policy.

An emotional support animal (“ESA”) is defined as a domestic animal that provides therapeutic support to a disabled individual through companionship, non-judgmental positive regard, support, affection, and a focus in life.

ESAs are not task-trained like service animals (for example, a seeing-eye dog).

In fact, all an ESA needs to be is fully housebroken, reasonably well-behaved (i.e. no bad habits which would disturb neighbors, such as excessive barking) and not pose a danger to others or show aggression.

Many people specifically seek residency in pet-free buildings for a variety of reasons. So how can there be dogs in a no pet building?

A tenant with a disabling mental illness (i.e. someone substantially limited in a major life activity) may be able to keep an ESA in a “no dog” building by supplying a doctor’s letter which explains that the tenant would benefit from the companionship of an ESA.

The disabled tenant must demonstrate that they need the ESA in order to live in the apartment, for example, where a tenant’s psychiatric disability makes interactions with others difficult, an ESA may decrease the psychological harm caused by isolation and loneliness. This requirement means that a tenant must disclose some facts about their disability to the landlord. Once supplied, a landlord must make a reasonable accommodation by allowing the disabled tenant to keep the ESA. This accommodation extends to a tenant’s guests.

Recently, a few months after a shareholder’s purchase of their apartment in a “no-dog” cooperative, the shareholder’s boyfriend began to visit the shareholder on a regular basis with a dog. The board of the cooperative reminded the shareholder that dogs were not permitted in the building. In response, the shareholder claimed that the dog was her boyfriend’s ESA, and provided a letter from her boyfriend’s physician.

Under the Americans with Disabilities Act and the Fair Housing Act, the cooperative is required to permit the shareholder’s boyfriend to bring his ESA with him when visiting, despite the dog prohibition, as the shareholder is entitled to the full enjoyment of her apartment, which includes having guests visit.

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However, if an ESA displays aggressive behavior, the cooperative can and should require its removal. In a cooperative building, the exclusion of a shareholder’s ESA was warranted where, on two separate occasions, his ESA lunged at another resident, and on one occasion bit a child in the lobby of the building. Despite the shareholder’s claim that the dog was a necessary comfort animal (ESA), the dog’s violent nature superseded this need.

A reasonable accommodation may include placing appropriate restrictions on the tenant’s ESA, such as requiring that the ESA be transported in and out of the building in a pet carrier or wear a muzzle.

A landlord may justly deny a request to keep an animal that could damage the property, is noisy, or might harm or frighten other tenants.

In those situations, the landlord’s interest in maintaining his property in a safe manner would outweigh the tenant’s interest in having the objectionable pet.

In New York, in buildings where pets are prohibited, a landlord and its employees and agents (including the superintendent, doorman, and managing agent) must be ever watchful to see if any resident has violated the ban. A landlord will be deemed to have waived it right to enforce a “no pet” rule if the tenant has kept a pet “openly” and “notoriously,” the landlord or his agent has known or should have known of the pet for three months or more, and the landlord does not begin a court case to enforce the no-pet clause within the three-month window.

In response to receiving a notice of default, a tenant may claim their dog as an ESA.  A landlord should quickly determine if the documentation furnished is sufficient to support the claim, and, if not, ask the tenant to supply the required information.   The doctor’s (or therapist’s or other clinician’s) letter must state how long the tenant has been a patient, the diagnosis, that the tenant’s disability limits a major life activity, and that the tenant needs an ESA in order to fully use and enjoy the apartment.

Written by Scott M. Smiler and Michelle P. Quinn, Partners at Gallet Dreyer & Berkey, LLP.

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