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My co-op's new pet policy seems unfair. What can I do?

Your board has the right to set the rules for pets, but those rules must allow for emotional support and service animals. 

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Question:

My co-op has updated its pet policy with approved entrances and exits, as well as new rules that pets cannot relieve themselves in outside walkways or linger anywhere publicly, including lobbies and laundry rooms. The board says this applies to service dogs and emotional support animals, and are instituting a fine of $225 for every violation. Can one fight these fines? How can we change this policy, short of joining the board in the next election?

Answer:

Your co-op board can set your building's pet policy, but they also must recognize the laws for keeping emotional support and service animals, our experts say.

"The board has the right to make business decisions regarding rules for pets and many other things in the operation of the co-op. The rules do not have to be reasonable," says Steven Wagner, partner at Wagner Berkow (a Brick sponsor).

The standard, he adds, is the "business judgment rule," which holds that as long as boards establish rules for their buildings that are in good faith and in the best interests of shareholders, courts will not interfere—even if shareholders find these rules unfair. 

"So long as these monetary fines do not rise to the level of a penalty, and so long as the cooperative is authorized to issue fines in its proprietary lease and by-laws, a court will uphold the rules and the fines as part of a cooperative’s business judgment," says Andreas Theodosiou, a partner with Braverman Greenspun

However, in your case, your co-op's new policy may be in conflict with state laws regarding service animals.

"The second legal issue is whether the rights of individuals with disabilities who may require a service animal or a comfort animal will override the rules adopted by the board pursuant to the business judgment rule," Wagner says. "A rule that prevents a service or comfort animal from staying with its owner, if it is needed to use and enjoy the owner’s home, will violate the city, state and federal human rights laws."

Under New York state law, public housing providers must make "reasonable accommodations" for people with disabilities who require service animals. For other types of housing, the Fair Housing Act and the Americans with Disabilities Act both offer protections for residents who can demonstrate that they have a disability and that a pet will aid in their occupancy and enjoyment of their apartment. 

"Based on the provisions of the Americans with Disabilities Act, and the regulations promulgated thereunder, a tenant is permitted to have a service animal accompany them at all times, as medically necessary, and a landlord cannot limit the areas in which the service animal is permitted," Theodosiou explains. 

However, it is unclear whether it is legal to fine the owner of an emotional support animal—which is distinct from a service animal—for violations of a co-op's pet policy. 

"There is an ongoing dispute about whether fines, fees, and rules can be applied to service dogs, dogs actually trained for a specific disability, versus emotional support pets, which are simply evidenced by a doctor's note and sometimes a $29.99 certificate from the Internet," explains Dean Roberts, an attorney with Norris McLaughlin

There has been a significant increase, in recent years, of New Yorkers claiming they require emotional support animals, which allows them to keep pets in no-pets buildings, and it's possible your co-op board's policy is a response to this trend.

"This may be taking place because there is an increase in people who need emotional support animals, and because there’s no external, clearly discernible disability," says Deanna Kory, a broker with Corcoran. "Other owners or board members may feel that this is taking advantage of them, because they are a no pet building, and this is a way around it." 

If you want to push back against this new, stringent pet policy, running for the board should not be necessary, but you may want to talk to your fellow shareholders and plan a response together. 

"When shareholders do not like rules and regulations created by the board, they can either [bring the issue up] at the annual meeting or call for a special meeting of shareholders and place on the ballot for a vote an alternative set of rules, or a determination that the existing rules are not acceptable," Roberts says. "This way, no one has to run for the board, but the issue can be brought before shareholders."


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