Apartment Law Insider Compendium 2016

2016:
Top 5 Stories
From
1 vendomerealestatemedia.com
Presents...
Get Tenants to Remove Obstructions from Fire
Exits and Hallways..................................................................2
How to Handle No-Pet Lease Clause Violations................................ 3
How to Evict Troublesome Tenants.............................................. 5
How to Build Case Against Tenants Profiteering
on Short-Term Rental Sites........................................................12
Handling Disputes About Assistance Animals...................................16

Get Tenants to Remove Obstructions
from Fire Exits and Hallways
This time of year, your tenants may be placing large items in hallways
to prep their apartments for holiday decorations or because weather
conditions might not allow them to place outside whatever bulky item
they had outdoors. Tenants sometimes obstruct fire exits, including fire
escapes, with a variety of items. Department of Housing Preservation and
Development (HPD) inspectors and the fire department routinely find such
things as flowerpots, mops, buckets, brooms, and bicycles on fire escapes.
These items could prevent escape from an apartment if there’s a fire.
Tenants also block public hallways with such items as bicycles or baby
carriages. Such obstructions could prevent tenants from quickly exiting
the building.
These tenant-caused obstructions can lead to your getting hit with a
violation. This makes it important for you to tell your tenants about an
unacceptable obstruction right away—and get them to remove it. If an
item is blocking access to the fire escape or preventing other tenants from
using it, you’ll be cited for Violation #539, which requires removal of a
“fire escape encumbrance.” If the item is blocking a public hallway, you’ll
be cited for Violation #538, which requires removal of the encumbrance
blocking a public hallway. HPD classifies these as Class B violations. An
owner has 30 days to correct a B violation and two weeks to certify the
correction to remove the violation or be hit with fines.
To help you deal with this situation, here’s a Model Letter: Require Tenant
to Remove Obstructions, that you can use as a guide to have tenant
remove an obstruction.
https://goo.gl/3f8fGQ
Apartment Law Insider Top Stories

Even though your lease bans pets, a tenant may violate the lease by moving
in with a pet—or by bringing in a pet sometime later. In either situation, you
want to get the pet out. While you can always seek the tenant’s eviction as
a last resort, you can first try to get the tenant to voluntarily remove the
pet. But you must act quickly.
That’s because if your efforts fail, you must start an eviction proceeding
within three months of discovering the pet. Under NYC law, in buildings
with three or more units, a “no-pets” provision in the lease is waived if
the tenant “openly and notoriously” keeps a pet for three months or more;
and the owner or his agent—such as a manager, super, doorman, or security
guard—knows about the pet; and the owner fails to object to the pet within
that three-month period [NYC Admin. Code §27-2009.1].
In one case, an owner sued to evict a tenant for violating her lease by
keeping a dog without his permission. The court ruled against the owner,
who appealed and lost. The tenant showed that she had kept the dog openly
and notoriously for more than three months before the owner objected. The
tenant walked the dog through the public hallway and outside the building
twice a day. And the owner’s employees saw the dog when they performed
repairs to the tenant’s apartment, and the super talked with the tenant’s
family about the dog [149th St., LLC v. Rodriguez, February 2016].
Here’s what to do to get the tenant to voluntarily remove the pet.
Four Steps to Get Tenant to Remove Pet
Step 1: Check lease. If you find out a tenant has a pet, check your lease
to make sure it bars pets. Most leases bar pets unless the owner consents
to the pet in writing. The lease clause that prohibits tenants from keeping
a dog, cat, or other pet in the rental unit without your permission is a
substantial requirement of their tenancy. A tenant who keeps a pet in
violation of a no-pets clause in a lease can be terminated [200 Associates,
LLC v. Haupt, January 2011].
How to Handle No-Pet
Lease Clause Violations

Step 2: Give verbal warning. Ask the tenant to get rid of the pet. Inform
the tenant that the lease bars him from keeping a pet in the apartment.
Step 3: Send polite letter. If, despite your verbal warning, the tenant
refuses to get rid of the pet, send him a polite but firm letter asking him to
do so. We’ve provided a Model Letter: Polite Letter Asking Tenant to Remove
Dog, that you can adapt to fit your particular situation.
Step 4: Send get-tough letter. What if your polite letter doesn’t work?
You’ll have to get tough. Send a second, more forceful letter. We’ve
provided a Model Letter: Tough Letter Threaten Eviction. Our letter:
• Tells the tenant that he’s violating his lease;
• Points out the specific lease clause that bars pets;
• Points out court cases in which owners have won the right to evict
tenants who refuse to get rid of an illegal pet. For example, in one case,
a tenant failed to prove he had kept the dog “openly and notoriously” for
more than three months [Barry Martin 4410 Corp. v. Santiago, July 2009].
In another case, a tenant was given 60 days to get rid of her two dogs or
face eviction [200 Associates, LLC v. Haupt, January 2011].
• Makes it clear to the tenant that if he doesn’t remove the pet by a set
deadline, he risks being the target of an eviction lawsuit.
Get Confirming Letter from Tenant
Both the polite and get-tough letters ask the tenant to confirm in writing
that he’s gotten rid of the pet. Once you get the tenant’s written letter,
you’ll no longer be “on notice” that the tenant has the pet. If it turns out
that the tenant lied and didn’t get rid of the pet, you’ll still have three
months from the date you find this out to sue to evict the tenant.
Because you have only a three-month window to start an eviction case after
learning about the tenant’s pet, start taking the four steps as soon as you
find out about it. And don’t wait more than one week between each step.
This is one situation where it’s very risky to be a “nice guy.” If you give the
tenant extra time to get rid of the pet, you could end up losing your right to
object to the pet.
Also be prepared to follow through quickly on your eviction threat if the
tenant doesn’t remove the pet after getting your get-tough letter. You must

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send the tenant certain preliminary legal notices before you start the
court case.
But, sending these preliminary notices doesn’t start the case for purposes
of the three-month deadline. You must send the tenant the actual court
papers—that is, the notice of petition and petition—within the
three-month period.
In one eviction case, the tenant claimed waiver, arguing that the owner
didn’t start the case within three months of discovering the dog. The owner
claimed that it started the case when it sent the cure notice, not when it
sent the court papers. The court ruled for the tenant and dismissed the
case. The case was started when the owner sent the petition. This was more
than three months after the owner sent the letter admitting that it knew
about the dog [Musialowski v. Perez, June 2002].
Editor’s Note: Remember, assistance animals are not pets under fair
housing law, so the pet policy doesn’t apply. A no-pet clause may not
apply if a tenant can prove that he or she is entitled to keep a dog or
other animal for therapeutic reasons as a reasonable accommodation for
a disability pursuant to the Fair Housing Act [42 U.S.C.A. Section 3604 et
seq.], the NY State Human Rights Law [Exec. Law 290 et seq.], or NYC Code
Section 8-107.
How to Evict
Troublesome Tenants
Few things can cause headaches or lower the value of your building faster
than a disruptive or destructive tenant. If you do nothing while a tenant
harasses other tenants, you could run into trouble later on. If the tenant
harms another building tenant, you may be brought into court to explain
why you didn’t take any action to get rid of the troublesome tenant. Or
other building tenants may start withholding rent, or move out, because of
the tenant’s activities. Or if the tenant damages your building, you may be
stuck with costly repairs.

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When You Can Evict
Both the rent stabilization and rent control laws allow you to evict a tenant
if you can prove that the tenant’s behavior fits the legal definition of a
“nuisance.” To evict a tenant based on nuisance, you must show either:
1. Abusive tenant behavior. The tenant or a family member has engaged in
a continuing pattern of harassment and abuse toward other tenants in the
building, threatening their health or safety; or
2. Property damage. The tenant has intentionally or maliciously damaged
the apartment or the building.
It’s important to know that evicting a tenant based on nuisance can be
difficult. Some judges will work to find a way to allow the tenant to remain
in the apartment. And even if you win your case, you may not be able to
evict the tenant right away. A judge could give the tenant a chance to
correct his behavior before issuing an eviction warrant. But if you take the
right steps and are patient, you should be able to evict that tenant.
Avoid Pitfalls When Sending Required Notice
Before you can ask a court to evict a tenant based on nuisance, you must
send the tenant a legal notice called a “notice of termination.” In it, you let
the tenant know you’re planning on ending the lease and will start a lawsuit
to evict him if he doesn’t move out by the date specified in your notice.
It pays to be careful when you send this notice. It can be tricky and if
you handle it wrong, you could wind up losing your case. You may want to
consult with your attorney before sending this notice.
When to send notice. You must send the termination notice to a rent-
stabilized tenant at least seven days before you can start the lawsuit.
(If your lease requires more notice, comply with your lease.) For a rent-
controlled tenant, you must send the notice at least 10 days before you can
start the lawsuit. Also, the Rent Control Law requires you to file an exact
copy of the termination notice with its affidavit of service at the Division
of Housing and Community Renewal within 48 hours after sending it to the
rent-controlled tenant (not including Saturdays, Sundays, or holidays) [NYC
Rent and Eviction Regulations, Section 2204.3(c)]. The courts have held
the affidavit of service is to be filed at the District Rent Office located in
the borough of the court proceeding. For proceedings in Manhattan, it is

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the DHCR’s position that service can be upon either the Lower or Upper
Manhattan Rent Office. For proceedings in Staten Island, where the DHCR
does not have a rent office, it is the DHCR’s position that the service can
also be upon either of the Manhattan Rent Offices. The Queens, Bronx,
and Brooklyn offices will be the place of service for proceedings in their
respective boroughs.
What notice says. Your notice must say far more than that the tenant
is a nuisance. It should describe all the tenant’s activities that create a
nuisance. Put as much information as you can in the notice. If you include
too little, a court will find your notice defective because it doesn’t give the
tenant enough information to defend himself in the lawsuit.
In one case, an owner sued to evict rent-stabilized tenants for breaching
their lease by making loud noises in public areas outside their apartment,
and for failing to repair damages to the apartment and public areas. The
tenants asked the court to dismiss the case. They said that the owner’s
notices were insufficient to permit them to prepare a defense and were
therefore defective under Rent Stabilization Code Section 2524.2(h). The
court ruled for the tenants. The notice stated only a single date when
the tenants were loud. While dates and times aren’t required in a cure
notice or termination notice, the lack of such information in notices here
rendered them insufficient. The notices also failed to explain how or when
the tenants or their guests damaged public areas [USKI Properties, Inc. v.
Machicote, November 2015].
In another case, the owner sued to evict a rent-stabilized tenant for
creating a nuisance based on objectionable conduct. The tenant claimed
the owner’s termination notice failed to state sufficient facts for the tenant
to put up a defense. The court ruled against the tenant. The termination
notice described various incidents involving the tenant’s household member,
including a Jan. 21, 2015, incident where that occupant verbally and
physically threatened building employees in connection with a motorcycle
chained in the building lobby. An argument escalated, a crowd gathered,
and gun shots were fired.
Police arrested the household member. The owner alleged that the
household member’s menacing and threatening behavior required the owner
to relocate and reassign several employees who feared for their safety. A
copy of the Criminal Complaint was attached to the termination notice.

Whether the incidents described were sufficient to prove nuisance was a
matter to be decided through pretrial questioning and trial [Mid Bronx HDFC
v. Paulino, August 2015].
Check lease for other required notice. Your lease may require you to send
an additional notice to the tenant, called a “notice to cure.” If so, you
must send this notice, even though it’s not normally required in an eviction
proceeding based on nuisance.
Here’s the type of proof you’ll need to win an eviction based on nuisance:
1. Testimony of other tenants. If your nuisance case rests on a tenant’s
abusive behavior toward others, the testimony of other building tenants
describing the tenant’s behavior is critical. If the other tenants are reluctant
to get involved and unwilling to testify, it will be almost impossible to win
your case. You must convince them that their testimony is essential to
evicting the abusive tenant.
Here are some steps to take before the trial to get ready:
• Get tenant complaints in writing. As soon as a building tenant complains
to you about another tenant’s behavior, have that tenant put the
complaint in writing. This will help you prepare for the trial and buttress
the tenant’s testimony at the trial.
• Ask tenants to keep a log. Ask each tenant who complains to keep a
written log describing any incidents involving the abusive tenant. Have
these tenants note the date and time of each incident. This will help
them remember specific dates, times, and events when called on to
testify in court.
• Keep your own log of tenant complaints. When tenants complain about
a disruptive tenant, keep your own log of their complaints. That way,
you’ll know which tenants to contact as witnesses if you take a disruptive
tenant to court.
How to Prove Case

2. Testimony of building personnel. Your building employees can also
testify about the tenant’s behavior. Employees who come in daily contact
with the tenant (doormen, supers) can tell the court their personal
observations of and experiences with the tenant’s behavior. Again, it helps
if employees keep a written log in which they describe specific incidents
involving the tenant.
3. Testimony of contractors or repairmen. If the tenant has damaged your
property, you can have the contractor who fixed the problem testify about
what repairs were needed and what caused the problem. You also should
save copies of paid bills and canceled checks to submit to the court.
Types of Nuisance Behavior
Courts consider the following to be nuisance behavior:
Tenant’s continuous abusive behavior. To show that the tenant’s behavior
is a legal nuisance, you must show that the tenant continuously harassed
other building tenants, threatening their health or safety.
In one case, an owner showed that a tenant engaged, over a period of
years, in a pattern of objectionable conduct at the building. This included
repeated instances of verbally abusive and physically violent conduct
toward the property manager. The tenant was convicted of second-degree
harassment, and the property manager had a two-year order of protection
against the tenant. The tenant’s behavior placed an intolerable burden on
other tenants and the building staff [Peters v. Owens, June 2015].
In another case, an owner sued to evict a 79-year-old rent-controlled tenant
for creating a nuisance. The owner claimed that the tenant harassed and
interfered with the building super’s performance of his duties and made
loud noises directed at disturbing her upstairs neighbors. The tenant was
represented by an attorney and a guardian ad litem (GAL) and, without
admitting any wrongdoing, signed a settlement agreement that put her
on probation for 15 months. The owner returned to court more than once,
claiming that the tenant had violated the agreement. Initially, the court
gave the tenant a chance to seek counseling for help with her behavior.

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But the tenant refused to get help and, after a hearing, the court ruled for
the owner. The building super credibly testified that the tenant repeatedly
called or rang his bell at all hours, threatened his family members, cursed
at him, and made racial slurs. He said that the tenant carried a metal
bar that he was afraid she would injure someone with. The tenant made
repeated claims that her apartment door locks were damaged, but they
were always found to be working. The tenant also complained about sound
waves from the apartment above hers. Upstairs neighbors credibly testified
that the tenant repeatedly yelled and cursed at them, banged on the
ceiling, and called the police during the night falsely claiming that there
were disturbances occurring in the upstairs apartment. They eventually
broke their lease and moved out because of the tenant. Videotape evidence
showed the tenant damaging the door of the upstairs apartment with a
metal bar. The tenant also left repeated, harassing voicemail messages for
the building’s managing agent.
In addition to harassing the super, managing agent, and upstairs tenants,
the tenant’s repeated frivolous 911 calls to the police and fire department
placed the entire community and neighborhood at risk since she was taking
first responders’ time away from other real emergencies. The owner could
proceed with eviction [122 D Broadway, LLC v. Weinberg, March 2015].
Family member’s abusive behavior. If you can show that the behavior
of a tenant’s family member threatens the safety of other tenants on a
continuous basis, you can evict the tenant.
In one case, a judge found that a rent-stabilized tenant could be evicted
for her son’s illegal drug activity at the apartment. At trial, a narcotics
detective testified that the police searched the three-bedroom apartment
with a warrant in 2013 and found in the open 240 packages of crack cocaine,
other drug paraphernalia, two packages of heroin, and a measuring scale.
The detective stated that, in her opinion, the drugs were arranged for sale
and that there was too much for personal use. The tenant’s son also later
pled guilty to criminal possession of narcotics with intent to sell. The tenant
testified that, although her son lived with her, she wasn’t involved with the
drugs, never used them, and never saw them in the apartment.
The court ruled for the owner. Given the amount of drugs found and

the son’s conviction, the owner proved that the apartment was used to
facilitate trade in drugs and that the tenant knew or should have known of
her son’s activities and acquiesced. The drugs and paraphernalia were found
in the half bathroom, second bedroom, and closet of the third bedroom,
which was the tenant’s room. The police also had searched the apartment
on prior occasions looking for drugs [WHGA Renaissance Apts. LP v. Jackson,
September 2014].
In another case, the court found that the tenant’s teenage children engaged
in antisocial behavior. The owner sued to evict the tenant for nuisance.
The court ruled for the owner, and the tenant appealed. The appeals court
ruled against the tenant. The court found the tenant didn’t take any steps
to stop the continual antisocial behavior of her two teenage children.
The owner showed that they repeatedly vandalized the building’s front
entrance door and elevator, urinated and smoked marijuana in the hallways,
verbally abused other tenants, and assaulted building staff. Their behavior
substantially threatened the comfort and safety of others in the building
[Acorn Realty, L.L.C. v. Torres, October 1996].
Abusive or destructive behavior of tenant’s visitors. In some circumstances,
you can evict a tenant if you can show that the tenant’s visitors threaten
the safety of other tenants. In one case, an owner sued to evict a rent-
stabilized tenant for creating a nuisance. The owner claimed that the
tenant had permitted up to 15 people to live in the apartment, causing
physical destruction of the premises and the issuance of many violations.
The owner and tenant signed a settlement agreement that put the tenant
on probation for 15 months. The tenant agreed not to engage in or permit
the complained-of conduct.
The owner later went back to court, claiming that the tenant had breached
the agreement. The court ruled against the owner after a hearing.
The owner appealed and won. The owner’s surveillance videotape showed
that one night many people went in and out of tenant’s apartment while she
was home. An altercation broke out among several of tenant’s guests in the
hallway outside the tenant’s apartment. It then moved downstairs and one
of the guests shattered the glass of the building’s entrance door. Another
guest repeatedly kicked the bottom glass pane and banged on that door.
The appeals court found that the tenant materially breached the settlement

agreement by failing to take any meaningful steps to curtail the recurrent
destructive and antisocial behavior of her roommates and/or guests.
Therefore, the owner could evict the tenant [289 & 305 Associates v. Mohan,
April 2016].
In another case, the owner sued to evict a tenant, claiming that the tenant
and his guests created a nuisance in the apartment and the building’s
common areas. The court ruled for the owner after a trial. The owner
presented testimony showing that the tenant and his unauthorized guests
engaged in a continuous course of antisocial conduct, including repeated
incidents of fighting and noise within the apartment. The tenant also
threatened other residents and their children. Police had been called to
the building based on the tenant’s conduct on various occasions. Another
tenant reported that a gun shot was fired from the tenant’s window and a
shell casing was afterward found nearby. The court found that the tenant’s
behavior presented a threat to the safety and comfort of other tenants
[Stratford, LP v. Ventura, March 2016].
How to Build Case Against Tenants
Profiteering on Short-Term Rental Sites
Throughout the case, the tenant repeatedly referred to her Airbnb guests
as “temporary roommates.” She testified that when she initially moved into
the three-bedroom apartment in the West Village she had other roommates
living with her but that over time they had moved on. When she couldn’t
afford to pay the $2,693.08 by herself she decided to seek “roommates”
through the Airbnb website.
Here’s how the owner built a successful eviction case against the
profiteering tenant—and how you can do the same.
Get Manager and Neighbor Testimony
To bolster the owner’s case, the managing agent testified that in or around
January 2011 he became aware of complaints from other tenants that
strangers with suitcases, many of whom looked like European tourists, were
coming and going from her apartment. He also testified that a housekeeper

was coming to the subject apartment on a weekly basis. He also had
discovered an advertisement posted on the Airbnb website that contained
the tenant’s picture and pictures of the apartment.
Get Statement of Insurance Disclaimer
An insurance broker also testified to the fact that insuring a Class A multiple
dwelling is less expensive than insuring a hotel. The insurance premiums
for a residential apartment building are based on the number of units,
whereas the insurance premiums for hotels or transient apartments are
based on turnover—that is, on the number of persons staying in a given unit
in a given period of time—and the fact that there is a much greater risk
for injury, death, and damage from fires, as well as crime such as theft,
loss of property, and other similar casualties. The broker testified that if a
residential apartment is used in a nonconforming manner, like a hotel, the
insurer might disclaim coverage for the incident, leaving the building owner
without insurance coverage for the premises.
Subpoena Tenant’s Tax Returns
The owner was also able to get a judicial subpoena for the production of the
tenant’s tax returns. Her 2010 Schedule E filed with her tax return reflected
business deductions from her income from renting out the apartment,
such as toiletries and shampoos, the cost of cleaning the apartment, and
utilities. She also deducted $120 for laundry, $100 for insurance, and $468
as “management fees.”
The tenant also admitted on cross-examination that some transactions were
not documented with or processed through Airbnb, as she negotiated them
in cash and avoided paying Airbnb’s transaction fees. Therefore, it’s difficult
to know how many more guests actually stayed in her apartment.
Print Out Customer Reviews from Website
In addition to ads and listings of the apartment on Airbnb, the owner also
submitted “customer reviews” of the tenant’s apartment from Airbnb
into evidence.
Cite Threat to Rent Stabilization System
The tenant’s current roommate testified on her behalf, stating that since
August 2011 she and the tenant have shared the apartment and split the
rent, but that at times house guests have rented out the third bedroom.
The court ruled that her testimony wasn’t helpful to the tenant, because

commercial exploitation of an apartment and concomitant profiteering
threatens “[t]he integrity of the rent stabilization scheme [which] is
obviously undermined if tenants, who themselves are the beneficiaries
of regulated rentals, are free to sublease their apartments at market
levels and thereby collect the profits which are denied the main landlord”
[Continental Towers v. Freuman, March 1985].
The court emphasized that tenants are prohibited from engaging in the type
of subletting activity that’s characterized by financial gain, as it unfairly
deprives the owner of collecting the same profits.
Cite Security Issues
Another reason to prohibit short-term subletting relates to the issue of
security. The court found that the tenant’s actions jeopardized the security
of the building and the safety of the other tenants when she gave out the
access code to the front door. The tenant’s actions also prevented the owner
from investigating the backgrounds of these guests, as the owner testified
that he does for all prospective tenants on a regular basis. This is especially
important to the building owner who bears the ultimate legal responsibility
for third-party criminal activity and maintaining the building in
a safe manner.
Book Apartment Online
Beyond what the owner in this case did, there are additional ways you can
build a profiteering case against a tenant. In one case he helped an owner
win, attorney Steven Sidrane recommended the owner go through the
process of booking a room from a profiteering tenant. By doing so, you can
expect a booking confirmation by email, which can then be admitted into
evidence at trial. After receipt of the booking confirmation, you can cancel
your stay.
Inspect Apartment
Sidrane also recommends conducting a legal inspection of the apartment
and looking for signs that the apartment is being used for short-term
rental purposes:

• Are there no personal effects in the rooms?
• Is there no food in the refrigerator?
• Is there no clothing in the closets?
• Are there no toiletries in the bathroom?
• Are the bedroom and closet doors locked from access?
If there are signs that the apartment is being used as a business by the
prime tenant, be sure to take pictures.
You should also look for items commonly provided by a typical hotel to
facilitate a tourist’s stay in New York City, such as complimentary soap, wifi
password information, rules for check-in and check-out procedures, a local
map, and information on local entertainment venues. All these signs and the
fact that guests are charged either a nightly or weekly rate all show that
this arrangement through sites such as Airbnb isn’t a typical “roommate”
living arrangement.
Install Surveillance Camera
If residents have complained of strangers in your building and if you suspect
that one of your apartments is being used as a hostel you might consider
installing a camera at the door to the apartment to document the number
of visitors and the duration of their stay. Surveillance in building common
areas doesn’t violate any privacy right currently recognized by New York
law. And installing such cameras in public spaces is unlikely to constitute
“harassment” as defined by Rent Stabilization Code Section 2525.5. The
well-established rule is that individuals retain a reasonable expectation of
privacy within private areas of living space—not necessarily in public spaces,
such as the common areas like hallways and lobbies of residential buildings.
Once preliminary evidence is gathered, you can bring the documentation to
your attorney, who can help assess the strength of your potential
eviction case.

Handling Disputes About Assistance Animals
The federal Fair Housing Act (FHA) prohibits discrimination in the sale or
rental of housing based on an individual’s disability, and requires a housing
provider to make “reasonable accommodations” that are necessary for a
person with a disability to fully use and enjoy his housing. This may include
allowing tenants with a disability to keep a service animal, regardless of a
“no-pets” policy. Under the law, a service animal is not considered a pet.
Disputes between a landlord and a tenant as to whether a dog or other
animal maintained in a tenant’s apartment qualifies as a service animal can
end up either in housing court or before the State Division of Human Rights
(DHR), or before both simultaneously.
The FHA and similar New York laws don’t prevent landlords from adopting
and enforcing pet polices—as long as they don’t use their policies to keep
out assistance animals. Whatever the policy or rules on pets, a landlord
must make an exception to allow an assistance animal when needed by an
individual with a disability to fully use and enjoy his apartment.
Pet Restrictions Generally
Many leases contain “no-pet” clauses, barring pets altogether. Other leases
may permit pets with restrictions on the number, type, size, or weight of
the pet, and impose conditions such as extra fees, security deposits, or
additional rent charges. Courts have upheld no-pet clauses and some other
pet restrictions. However, if these lease provisions are not enforced in a
timely manner, the NYC “Pet Law,” in effect since 1985, can result
in a waiver.
Under the Pet Law, if a tenant in a multiple dwelling has kept a pet openly
for at least three months without objection by the landlord, a no-pet clause
in the tenant’s lease is deemed unenforceable. The Pet Law waiver doesn’t
apply when keeping the pet creates a nuisance, causes damage to property,
or endangers the health, safety, or welfare of other occupants. If a landlord
By Eileen O’Toole, Esq.

and tenant can’t agree on whether the landlord has waived the Pet Law or
whether the tenant’s pet is causing a problem, a court may have to decide
the issue.
Pet Restrictions That Don’t Apply to Assistance Animals
A no-pet clause or other pet restriction also may not apply if a tenant
can prove that he or she is entitled to keep a dog or other animal for
therapeutic reasons as a reasonable accommodation for a disability pursuant
to the FHA [42 U.S.C.A. Section 3604 et seq.], the NY State Human Rights
Law [Exec. Law 290 et seq.], or NYC Code Section 8-107. Questions that
can arise under these laws in response to a tenant’s request to keep an
“assistance animal” include:
• Whether the tenant is disabled;
• Whether an animal kept in the tenant’s apartment is an “assistance
animal” or merely a pet;
• Whether the tenant needs the assistance animal to use and enjoy her
apartment;
• Whether the landlord has reasonably processed a tenant’s request to
keep the assistance animal; and
• Whether the tenant is entitled to keep more than one assistance animal.
Although landlords may require applicants or tenants to pay a pet deposit
under some circumstances, they can’t require an applicant or tenant to pay
a deposit for an assistance animal.
Housing Discrimination Against Disabled Tenants Prohibited
The FHA broadly defines “disability” to mean physical or mental
impairments that substantially limit one or more major life activities.
That covers conditions that may not be obvious or apparent, as long as
the condition is serious enough to substantially limit major life activities,
such as seeing, hearing, walking, or caring for oneself. All individuals with
qualifying disabilities are entitled to reasonable accommodations—including
assistance animals—when needed to allow them to use and enjoy
their homes.
Assistance animals are not “pets” under fair housing laws. They’re animals
that work, provide assistance, or perform tasks for the benefit of a person
with a disability, or provide emotional support that alleviates one or

more identified symptoms or effects of a person’s disability. Assistance
animals can go by many names—including service animals, therapy animals,
companion animals, or emotional support animals.
Disabled tenants may require assistance animals. The FHA bans housing
discrimination against individuals with disabilities, including the refusal
to make reasonable accommodations in rules, policies, practices, or
services when they’re necessary to provide individuals with disabilities
an equal opportunity to use and enjoy their apartments. The reasonable
accommodation provisions come into play whenever an individual with
a disability wants to use an assistance animal in buildings that either
prohibit or impose restrictions or conditions on pets. Like all reasonable
accommodation requests, the determination of whether an individual has a
disability-related need for an assistance animal involves an
individualized assessment.
Fair housing laws allow not only service dogs, but also any type of animal
that provides assistance or emotional support to an individual with a
disability. Breed, size, or weight limitations may not be applied to an
assistance animal, according to HUD. Assistance animals don’t have to be
individually trained or certified—and they all have the same legal standing,
regardless of what type of assistance they provide to an individual with a
disability. Courts have rejected a requirement that hearing dogs must be
professionally trained or certified.
Example: Landlord appealed DHR’s decision that it discriminated against
tenant on the basis of her disability, and lost. Tenant provided landlord
with adequate notice of her need for a hearing dog at her apartment, thus
triggering landlord’s duty under the Human Rights Law to provide reasonable
accommodation, by sending a letter informing landlord that she was
suffering from hearing disability requiring service, and attaching a letter
from her otologist stating that, based upon his examination of tenant, she
had bilateral hearing loss and would benefit from a hearing dog. A damages
award of $10,000 for mental anguish was found excessive and was reduced
to $1,000 [Mozaffari v. NY State DHR, 63 A.D.3d 643 (1st Dept. 2009)].

Criteria for Assessing Request to Keep Assistance Animal
Problems often arise when landlords—or tenants—don’t understand what
fair housing laws actually say or mean. If a tenant requests permission to
keep an assistance animal, treat it as a reasonable accommodation request
for an exception to the building’s pet policies. The law doesn’t require that
a request be made at a particular time or in a particular manner. What
matters under the law is:
• Whether an otherwise qualified tenant seeking to use and live with
the assistance animal has a disability—that is, a physical or mental
impairment that substantially limits one or more major life activities;
• Whether the person making the request has a disability-related need
for an assistance animal. In other words, does the animal work, provide
assistance, perform tasks with services for the benefit of a person with
a disability, or provide emotional support that alleviates one or more of
the identified symptoms or effects of a person’s existing disability?
• Whether the tenant needs the assistance animal to use and enjoy the
apartment; and
• Whether a reasonable accommodation could be made so that the tenant
can keep the assistance animal.
If all the criteria are met, then fair housing laws require a landlord to
modify or make an exception to its pet policies to permit an individual with
a disability to live with and use an assistance animal at the building, unless
doing so would impose an undue financial or administrative burden or would
fundamentally alter the nature of the building’s services.
For example, some buildings have policies prohibiting certain dog breeds
because of restrictions in the building’s liability insurance policy. In a
2006 memo, HUD specifically addressed insurance policy restrictions as a
defense for refusing to grant reasonable accommodation requests involving
a breed of dog that the owner’s insurance carrier considered dangerous.
If the building’s insurer would cancel, substantially increase the costs of
the insurance policy, or adversely change the policy terms because of the
presence of a certain breed of dog or a certain animal, then HUD will find
that this imposes an undue financial and administrative burden on the
housing provided. Nevertheless, the HUD memo warned that investigators
will check the owner’s claim by verifying with the owner’s carrier “and

consider whether comparable insurance, without the restriction, is available
on the market.”
The request for an assistance animal also may be denied if the animal is
a direct threat to the property or the health and safety of others. But a
landlord can’t make that decision based on speculation about the animal’s
size or breed; you have to look into the specifics of the particular
animal involved.
Don’t Make Process Overly Burdensome for Tenant
Under fair housing law, you can’t ask questions about an applicant’s
disability or disability-related need for an assistance animal if both are
known or readily apparent—for example, a guide dog used by a blind or
visually impaired person. But you may request information from a tenant
with a known or obvious disability if his need for an assistance animal isn’t
readily apparent or if the disability itself isn’t obvious.
Example: In March 2005, a cooperative shareholder tenant sent landlord a
brief note from her internist stating that having a pet would be “medically
and psychologically beneficial” for her chronic depression. In response,
landlord quickly advised tenant that the co-op’s rules permitted her to
have up to two cats, but that dogs were prohibited. A month later, tenant
made a second request, this time specifically asking for permission to have
a dog. With her second letter, tenant submitted another brief note from
her internist, which included a conclusory assertion that tenant’s “having a
dog is both theraputic [sic] and necessary in working through her disability.”
Landlord promptly responded, requesting more detailed information
supporting tenant’s need to have a dog. Three weeks later, without having
provided landlord any further information, tenant complained to DHR,
alleging that, in violation of the Human Rights Law, landlord had engaged in
an unlawful discriminatory practice relating to housing because of disability.
DHR ruled for tenant and awarded her $5,000 in compensatory damages, as
well as $5,000 in punitive damages.
Landlord appealed and won because the court found that DHR’s decision
wasn’t supported by substantial evidence. Tenant failed to demonstrate,
through either medical or psychological expert testimony or evidence, that
she required a dog in order to use and enjoy her apartment and failed to
establish that, by requesting more information, the petitioners had denied
her request for a reasonable accommodation [Northgate Cooperative v.

Donaldson, 54 A.D.2d 414 (App. Div. 2 Dept. 2008)].
While additional information may be needed to respond to a tenant’s
request to keep an assistance animal, landlords who make the process
unduly burdensome can be penalized.
Example: In June 2015, the Justice Department announced that the
owner of the largest affordable housing cooperative in New York agreed
to pay a $50,000 civil penalty and dedicated as much as $600,000 in
compensation to resolve allegations that it failed to provide reasonable
accommodations to people who required assistance animals. Specifically,
the government accused the landlord of maintaining and using an overly
burdensome and intrusive policy governing waivers of its no-pet rule, which
deterred and prevented people with disabilities from obtaining reasonable
accommodations in violation of fair housing law. The government claimed
that before changing its policy, the landlord required applicants seeking a
reasonable accommodation to the building’s no-pet policy to fill out five
forms (including one to be completed only in blue ink and another to be
typewritten), prohibited certain breeds of dogs, required animals to be
neutered or spayed, imposed annual renewal requirements, and required
applicants to provide their medical records [U.S. v. Riverbay, June 2015].
Establishing policies and procedures for handling assistance animal requests
may help avoid claims of unfair handling of a tenant’s request.
Example: In May 2015, a Manhattan housing cooperative agreed to pay
$85,000 to settle fair housing claims based on its alleged denial of
reasonable accommodations to its residents by prohibiting them from
keeping emotional assistance animals. The building had no written or
established policies or procedures for making reasonable accommodations
for individuals who required assistance animals in connection with a
disability. The landlord either denied or ignored requests from three tenants
to keep assistance animals, and instead started eviction proceedings. The
tenants then filed federal and state fair housing complaints. Ultimately, the
government obtained court orders to halt the evictions until the fair housing
case was resolved. Under a settlement agreement, the landlord agreed to
adopt a policy for providing reasonable accommodations to residents with
disabilities and to train its employees and officers to follow the new policy.
The landlord also agreed to pay one tenant $30,000 and another $55,000
along with other damages, and to let them keep emotional assistance
animals in their apartments [U.S. v. East River Housing Corp., May 2015].

Practical Pointer: You should also watch out for potential retaliation
claims when handling requests to keep assistance animals by residents
with disabilities. It’s unlawful to retaliate against applicants,
tenants, or others because they’ve exercised their fair housing rights
by requesting a reasonable accommodation or filing a fair housing
complaint against you.
If a tenant’s disability is not readily observable, a landlord may ask for
reliable disability-related information that’s necessary to verify that the
tenant has a qualifying disability—that is, a physical or mental impairment
that substantially limits one or more major life activities—and has a
disability-related need for the animal. But you can’t ask the tenant for
information about what his disability is or what the animal does to assist
him—only for confirmation that there is a disability and that the animal is
needed because of that disability.
In general, verification may come from a doctor, psychiatrist, social worker,
or other mental health professional, peer support group, or reliable third
party in a position to know about the individual’s disability—even the tenant
himself, under certain circumstances. But you can’t ask applicants or
tenants for access to medical records or medical providers—or for detailed
or extensive documentation about their physical or mental impairments.
Sometimes, even after initial inquiry, it is unclear whether a tenant has a
disability that requires an assistance animal for use and enjoyment of his
apartment. Housing courts often defer to HUD or DHR to decide disability
questions before ruling on whether a landlord can claim that a tenant has
simply violated a no-pets policy.
Example 1: Landlord sued to evict tenant for keeping a dog in violation
of her lease. Tenant claimed that she needed the dog to help with her
disability and that landlord was illegally discriminating against her. Tenant
had diabetes and was legally blind. She claimed that the dog was a “comfort
animal” and helped relieve depression. After landlord started the eviction
case, tenant filed a disability discrimination complaint against landlord
with HUD. HUD referred tenant’s complaint to DHR. The court found that
DHR should decide the issue of whether landlord was discriminating against
What to Do When a Disability Isn’t Obvious

tenant and decided to delay any ruling in the eviction case until DHR ruled
on the discrimination issue [90-10 149th St. v. Badillo: NYLJ, 3/8/00, p. 30,
col. 5 (Civ. Ct. Queens)].
Example 2: Landlord sued tenant to enforce a letter agreement they
signed in which tenant agreed she wouldn’t keep a dog in her apartment.
Tenant had signed the letter, but then got a dog without landlord’s consent.
Landlord sued to evict tenant, who claimed that she got rid of the dog.
But tenant later claimed that she signed the letter under duress and that
landlord unlawfully discriminated against her as a disabled person who
needed a service dog due to her depression. Although she hadn’t raised this
defense at first, the court allowed tenant to amend her answer to landlord’s
complaint. There were questions of fact as to whether tenant was disabled,
whether she required a dog as a support animal, and whether this was a
reasonable accommodation that landlord must provide [NAR Apartments
LLC v. Ippolito: Index No. 107866/10, NYLJ No. 1202535365618 (Sup. Ct. NY;
11/21/11)].
Example 3: HUD issued a discrimination charge against landlord for barring
co-op tenants from keeping emotional support dogs needed to remediate
mental illness. Landlord appealed HUD’s decision in federal court. In the
meantime, the housing court ruled for landlord in an eviction proceeding
against tenant for harboring the dog, which some claimed was a nuisance.
Tenant then asked the federal court to delay her eviction while the federal
court decided the appeal. The court ruled for tenant. If evicted now,
the court would lose its ability to provide relief to tenant if it ultimately
decided in her favor. And while landlord claimed that the dog was noisy
and dangerous, 15 neighbors submitted sworn statements saying that the
dog was well behaved [U.S. v. East River Housing Corp.: 13 CV 8650 (SDNY;
11/14/14; Ramos, J)].
Tenants Don’t Always Have a Qualifying Disability
Sometimes, a tenant has an impairment and considers himself disabled, but
he doesn’t qualify as an individual with a disability under fair housing laws.
Example 1: Landlord sued to evict tenant for keeping a dog, in violation of
his lease. Tenant claimed that he needed the dog for therapeutic reasons.
The court ruled for landlord. Tenant appealed and lost. The FHA requires
landlord to reasonably accommodate the needs of handicapped tenants.

But tenant didn’t prove any handicap. He submitted only an ambiguous
statement from his doctor that depressed people may benefit from
keeping pets, along with notes in his medical records stating that he was
anxious about losing his dog. Even if tenant did have a mental or physical
impairment qualifying as a handicap under the law, he also didn’t show
that keeping the dog was necessary to his enjoyment of the apartment
[Landmark Properties v. Olivo: NYLJ, 8/12/04, p. 30, col. 3 (App. T. 2 Dept.
2004)].
Example 2: DHR ruled for tenants, who claimed housing discrimination due
to landlord’s denial of their request to keep a companion dog to help with
their depression. DHR ordered landlord to withdraw an eviction proceeding
it had started against tenants and to pay tenants $7,500 in compensatory
damages. Landlord appealed and won. Tenants showed that having the dog
helped them with depression but failed to present proof that the dog was
“actually necessary” in order for them to use and enjoy their apartment
[Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879 (App. Div. 2 Dept.
2009)].
Example 3: Landlord sought permission from HPD to evict tenant for
keeping a dog in her apartment, in violation of her lease. Tenant claimed
that she bought the dog to relieve her daughter’s anxiety. HPD ruled that
landlord must make an exception to its no-pet policy to accommodate
tenant’s disabled daughter. Landlord appealed and won. There was
insufficient proof that tenant’s daughter was disabled. And, even if she
was disabled, there was no proof that the dog was required for her use
and enjoyment of the apartment. There was no reason for landlord to
accommodate tenant [Contello Towers Corp. v. HPD: NYLJ, 11/17/04, p. 19,
col. 1 (Sup. Ct. Kings 2004)].
Example 4: Landlord sued to evict tenant who kept a dog in violation of his
lease and didn’t remove the dog after landlord sent tenant a notice to cure.
Tenant then complained to DHR, claiming discrimination. Tenant argued that
the pet was a therapy dog needed to relieve his depression. DHR later sued
landlord to recover damages based on unlawful discrimination. Landlord
asked the court to bar DHR from presenting testimony or documents
asserting that tenant should be allowed to keep the dog as a reasonable
accommodation to his disability. The court ruled for landlord. Tenant’s
psychotherapist wrote varying opinions over time as to tenant’s diagnosis. At

one point the therapist stated that, while tenant was no longer depressed,
he needed the dog to prevent a recurrence of the symptoms. The court
agreed with landlord that these statements were too speculative to prove
that tenant was suffering from a disability that required a reasonable
accommodation [New York State Division of Human Rights v. 111 East 88th
Partners: Index No. 402894-2007, NYLJ No. 1202670317446 (Sup. Ct. NY;
9/5/14)].
Tenants May Need More Than One Assistance Animal
Nothing in the FHA prevents an applicant or tenant from requesting a
reasonable accommodation to keep more than one assistance animal. The
animals may perform different disability-related tasks or services. Or the
applicant may say that one or more provide emotional support to alleviate
the effects of an existing disability. However, the fact that a landlord
has permitted a tenant to keep one assistance animal as a reasonable
accommodation doesn’t mean the landlord can’t dispute the need for a
second assistance animal.
Example: Section 8 tenant’s lease prohibited her from keeping dogs or
cats as pets. At some point tenant got a dog, which landlord allowed her
to keep as an accommodation for unspecified reasons. But landlord denied
tenant’s request to get a second dog. Tenant took in a second dog anyway
without notifying landlord. Later, landlord discovered the second dog and
received complaints that the dog was disturbing the neighbors. Landlord
immediately sent tenant a notice to cure. Tenant claimed in response
that she had had the second dog for more than 90 days and that landlord
therefore had waived its right to seek its removal. Tenant didn’t claim at
that time that she had a disability or that the second dog was an assistance
animal. Landlord then sued to evict tenant, and tenant in turn filed housing
discrimination complaints with HUD and DHR, who dismissed tenant’s
complaints. Tenant appealed and lost.
The housing court then ruled for landlord but stayed the eviction warrant
for six weeks to let tenant get rid of the second dog. Tenant didn’t appeal
that decision. Instead, tenant sued landlord in federal court, claiming
that landlord had violated her civil rights based on her disability. Tenant
got a temporary restraining order stopping her eviction while she pursued
her federal court case. Tenant then sought a preliminary injunction, while
landlord asked the court to dismiss the case.

Tenants with Assistance Animals Must
Otherwise Comply with Lease and Law
Ultimately, the court ruled against tenant. Tenant was diabetic and claimed
that the second dog alerted her when her blood sugar became low. But
her dog trainer testified that a dog couldn’t be trained to do this. Tenant
identified no major life activity that was impaired by her diabetic condition.
And tenant walked her dogs and worked seven days a week as a home health
aide, commuting daily via public transportation. Tenant failed to show
how allowing her to keep a second dog was a reasonable accommodation
of a disability. Landlord could proceed with the eviction [Ayyad-Ramallo
v. Marine Terrace Associates LLC: Index No. 13-CV-7038, 2014 WL 2993448
(EDNY 7/2/14)].
Tenants generally must refrain from objectionable conduct and maintain
their apartments in a safe and habitable condition. A landlord retains the
right to seek damages from a tenant for repairs required due to damage
to the premises caused by an assistance animal. Tenants with disabilities
who use assistance animals also are responsible for the animal’s care and
mainteance.
Example: The NYC Department of Mental Health and Hygiene (DOH) fined
a tenant $1,000 for keeping a mixed-breed pit bull dog and a cat without
having them immunized against rabies [Matter of Matthews: ECB App. No.
1400077 (3/27/14)].

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