End of an era: Why co-ops should allow dogs

Like many other New York City co-ops that I represent as a real estate lawyer, the 1,500+ apartment post war co-op in Chelsea had a firm no-dog policy.  

In addition to making buyers fully aware of the ban, the board there also required each incoming shareholder to acknowledge in writing that they did not own a dog and would not have one in the apartment.

Along came a middle-aged first time co-op owner, who signed the rider in spite of the fact that he did in fact own a small terrier, which he brought with him when he moved in.

My client started the necessary legal action to evict the dog well before the deadline imposed by New York City’s Pet Law, which gives co-op boards and landlords 90 days from the day they should have known about the dog to take steps to evict it.

It seemed like an open and shut case. 

Then the dog owner produced a doctor’s note. It said that he was depressed and needed the dog as an “emotional support” pet.  The Housing Court sided with the owner and “recommended” that the co-op board make a "reasonable accommodation" as required under the Americans with Disabilities Act. 

My client, the co-op, was stuck with a dog it didn’t want, a legal bill, and the firsthand knowledge that in New York, no-dog policies have become extraordinarily difficult to enforce.

Even when boards act in time to defend a democratically established policy against dogs--incurring $10,000, $15,000, or $20,000 in legal fees--Housing Court judges or, more commonly, the NYS Division of Human Rights, almost invariably side with pet owners who claim (often with the thinnest veneer of believability) that they need emotional support pets for conditions ranging from simple depression to dyslexia.

(Think of it this way: No judge has ever made the cover of the New York Post for allowing a resident to keep a dog…versus the Bronx judge who years ago ordered an eviction based on the harboring of a dog and wound up on the tabloid’s front page.)

The ease of obtaining a “reasonable accommodation” raises two issues for co-ops: Fairness, and practicality. 

Is it fair to let one owner’s desire for a dog trump the majority’s wish to live in a no-dog building? And what about “dueling” accommodations—a situation, for instance, where the “emotional support” pet is a nightmare for a neighbor with a pathological fear of dogs or a severe allergy, who bought into the building in part because of the dog ban?

Unlike rental buildings, cooperatives are a democratic form of ownership, in which the shareholder-owners are empowered by the election and amendment process to set their own rules. They should not be forced by the Pet Law or questionable accommodation requests to allow dogs when the vast majority of residents vote not to have them.   

For this reason, I am not the only New York real estate attorney keeping an eye on a case currently unfolding in Ohio, in which a government worker with a severe nut allergy won permission to bring her nut-sniffing dog to work, triggering allergies in five of her co-workers.

In the meantime, here is the somewhat counterintuitive counsel I give my co-op board clients: The deck has become so stacked against no-dog policies that the best course of action in the “emotional support” era is to allow some dogs.

A restrictive policy designed to limit intrusion and disruptiveness by regulating the size, number and behavior of the dogs actually gives boards more control than a straight no-dog policy, because owners who use the “emotional support” argument are still required to comply with the limitations set by the board.  While the co-op must tolerate some dogs, it can at least regulate them and their behavior....and hope that, eventually, courts will give democratically established rules their fair due.

Dean M. Roberts is a co-op and condo attorney at Norris McLaughlin & Marcus, which represents over 100 co-op and condo boards in New York City.