Why you don't really need to worry about co-op "dog racism"

By Virginia K. Smith | June 17, 2015 - 10:16AM

News started making the rounds yesterday about an Upper West Side co-op that made the bold, bizarre move of demanding that the building's mutts be DNA tested to determine whether or not they're comprised of one of the numerous breeds banned in the building. Dogs with a mix of 50 percent or more of these breeds (which include dogs as disparate as St. Bernards and Shi Tzus) will not be allowed in the building; one angry resident told DNAinfo, "It's like dog racism essentially."

As we're wont to do, we took this issue to the experts to determine whether or not a board can really do something like this. The answer: Yes, but there are limits. "It would be enforceable for new dogs," says real estate attorney Steve Wagner of Wagner Berkow LLP, but as for the building's pre-existing pets, they'd be beholden to the law that prevents buildings from booting animals that've been kept in an "open and notorious" fashion for 90 days or more.

"They can do all the testing they want, but they can't get rid of a dog unless it's actually guilty of objectionable conduct like continuous barking or biting people," Wagner tells us. While it's common for buildings to only allow pets under a certain size and weight, Wagner calls this policy "excessive."

On top of that, it's likely to be wildly unpopular. "They should probably do the testing on the board [instead]," jokes Dean Roberts, a real estate attorney with Norris, McLaughlin, & Marcus, who frequently works with co-op and condo boards. "I find species based rules for dogs stupid and inappropriate. Dogs nature is primarily drive by their training, not the genetics." Moreover, as Wagner points out, overhauling the pet policy is up there with raising common charges as a surfire way for a board to rankle residents.

The board at 170 West End Avenue seems to understand this at least a little, and, according to DNAinfo, has already toned down the wording of the policy over the past few months to say that the board could demand dogs be tested at its discretion, rather than requiring mandatory proof of breeding for every pooch in the building. (Translation: if they don't like your dog, they can ask you to have it tested or obtain a letter from your vet attesting to its background.)

However, they might not want to totally toss out the idea of DNA testing for the building's four-legged residents. "Where I have seen DNA testing used for a logical purpose is with homeowner associations who require testing to determine the dog who's leaving feces on complex property," says Roberts. "There are actually companies that provide this service to property owners.

In any case, we suspect this battle will be won in the court of public opinion, rather than via any kind of discrimination lawsuit. With building policies across the city more pet friendly than ever—and the our canine population on the brink of gaining hard-won outdoor brunching rights— would any co-op really want to find itself on the wrong side of history?

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