Case of the Week: Westchester Gardens LP v. Vargas

The no-pet clause is one of the stranger parts of New York’s housing law. There is nothing prohibiting a landlord from including a no-pet clause in their lease. However, tenants who need either service animals (seeing-eye dogs) or emotional support animals (anything that a therapist will sign off on) are exempted from said clause.

The former type of animal seems legitimate. Service animals are highly trained and help individuals with disabilities severe enough to make many elements of city living extremely difficult. The latter also seems legitimate in many scenarios. For example, a veteran with a severe case of post-traumatic stress disorder may benefit from the affection of an emotional support dog. Similarly, an autistic individual with severe emotional dysregulation may be helped by an emotional support animal. However, when a person with some vague sense of ennui believes they are entitled to a snake or a peacock or a ferret, it’s clear that the system is being abused. Even worse, this kind of exploitation is an insult to the people who actually need emotional support animals.

Unfortunately, the law has yet to distinguish between people with severe emotional disorders whose symptoms are mitigated by emotional support animals and people who just really want a pet. Until that happens, anyone who can get a mental health professional to sign a note saying that the animal is necessary (taking into consideration size constraints and the animal’s propensity for violence) is protected under the law. There is nothing that a landlord can do about it.

This comes on top of yet another quirky rule in New York’s housing laws. It is known as the three-month rule, which can be found in the city’s administrative code under Section 27-2009.1:

Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets…and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or actions to enforce a lease provision prohibiting the keeping of such household pets, such lease provisions shall be deemed waived.

Put in plain English: Upon learning of a pet, you (or anyone who qualifies as an agent of your business, including the super) have three months to provide documentation to the tenant informing them that they are in violation of the terms of their lease. If you fail to act, then the pet(s) can stay.

Tell everyone who works for your company: If you see something, say something. This week’s volume of the Case of the Week is reminder of what happens when you don’t.

In 2018, a landlord sued to evict a tenant for violating their lease because they owned a dog in a building with a no-pet policy. The tenant argued that the dog was an emotional support animal. She claimed that she needed the animal because she was suffering from a disability. Her therapist corroborated these claims, and provided a letter stating that the tenant was under her care in 2018, that the dog was helping her with “adjustment disorder with anxiety and unresolved grief,” and that the landlord was required to provide reasonable accommodation for the tenant’s disability (and therefore the dog) under New York State Human Rights Law.

There was just one big problem with this story. During the course of the trial, the court learned that the tenant was not telling the truth. She had actually owned the dog since 2013, well before she would have obtained said dog for reasons of emotional support. Furthermore, the tenant told the landlord at that time that the dog was her sister’s pet and that she only took care of it when her sister traveled for work.

One would think that the court would rule for the landlord. Of course, this ignores the fact that the landlord knew about the pet in 2013, did nothing to enforce the building's no-pet clause, and even had security cameras installed at one point in time, which, the court claims, would have alerted the landlord of the pet’s existence and exposed the tenant’s lie. As the landlord did not act until five years after learning of the pet’s existence and at least more than three months after the pet’s existence would have been evinced by reviewing the footage from the security camera, the case was dismissed.

What to take away: If you see something, say something.

To read more about this case and to see others like it, visit the site of our friends, The Habitat Group.

  • LandlordsNY Member

    How does one know WHEN the landlord or agent first learned about the pet? Is it upon the tenant "first taking possession of the unit" or the first time someone notices and doesn't send written documentation?

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