Help! My co-op is selectively enforcing its pet policy

By Virginia K. Smith | September 19, 2016 - 12:59PM

Q: The written house rules in my building state that dogs are allowed with board approval, but the board and management claim there's a "no-dog" policy and that the written version is out of date, while still sometimes allowing certain residents to get pets after they've lived here for a while. Do I have any recourse to compel the board to follow the written policy, or invalidate what they claim is the newer, unwritten no-pets policy based on their selective enforcement?

Your board is definitely in the wrong here, say our experts, both for failing to put a supposed update of the rules into writing, and for selective enforcement of said rules. But before you put up a fight, your first step should be to revisit the building's written rules, the better to determine what the official policy really is.

"Request an opportunity to review all written policies, resolutions, and minutes related to the board’s changing position on dogs before embarking on a legal challenge," advises Elizabeth Donoghue, an attorney with Himmelstein, McConnell, Gribben, Donoghue, & Joseph. You should also take a look at the proprietary lease, adds Wagner Berkow attorney Steve Wagner.

If the proprietary lease does, indeed, state that pets are allowed with approval, says Wagner, that means their current verbally announced, sketchily-enforced no-pets policy is on shaky legal ground. "Generally, the cooperative is required to notify you in writing of changes in the house rules," he adds. "A court will not likely enforce a change in house rules that is not given to the tenant-shareholders in writing."

Additionally, says Wagner, house rules that conflict with the proprietary lease could be considered "a de facto amendment to the proprietary lease," and any amendment to the proprietary lease is likely to require a shareholders vote.

Theoretically, your co-op could claim that they're still following the rules set forth in the lease, says Donoghue, since even the pet-friendly written policy stipulates board approval, allowing them final say. Still, she says, "the board would be wise to reconcile the existing house rule that dogs are allowed with board approval, and its newer 'no-dog' policy, to its shareholders to maintain clear communication and set realistic expectations between the board and shareholders."

But they're putting themselves on shaky ground here from a legal perspective. "Selective enforcement of house rules is a 'no-no' and may be subject to a number of claims by an aggrieved tenant-shareholder," says Wagner. These claims include unequal shareholder treatment, breach of fiduciary duty (if, for instance, the enforcement is motivated by personal vendettas), or human rights violations if the enforcement is somehow discriminatory (for instance, refusing an emotional support pet).

So this leaves you with a few options as to how to approach the problem. First, you could call a special meeting of the shareholders seeking to clarify or change the current rule as it stands in writing, says Jeff Reich, an attorney with Schwartz Sladkus Reich Greenberg Atlas LLP. "The policy could be clarified with a detailed rule that does not leave the issue up to board discretion," he notes.

Or if you're seeking to have a pet approved, you could request permission from the board, and if you're denied, bring a lawsuit seeking a declaratory judgment that you're being treated unequally, for any number of the reasons mentioned above. The third option Reich suggests is to simply obtain the pet you have in mind, and if the board takes action against you, defend yourself with a claim that you're being treated unequally.

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