Skip to main content

Perspectives

Lease Can Be Terminated for Breach of “No Pets” Clause Where Resident Fails to Show That Dog Is a Support Animal

 

            Federal, state, and city anti-discrimination laws require landlords (including cooperative boards) to allow tenants to keep support animals in their apartments, even where a “no pet” policy would otherwise preclude them.  In recent years, court decisions and administrative agencies have frequently sided with tenants who assert that they suffer from a disability and that an animal provides them with emotional support.  However, the landlord may require some evidence that the tenant is disabled.  If a court finds that the tenant does not actually suffer from a disabling condition, it may side with the landlord.

In Westchester Plaza Holdings, LLC v. Sherwood, 2019 N.Y. Misc. LEXIS 4589, 2019 N.Y. Slip Op. 51378(U) (Mount Vernon City Court Aug. 23, 2019), the landlord sought to evict a tenant and her son because they failed to cure a violation of a no-pet clause.  The son, who occupied the apartment, claimed that his dog was an emotional support animal.  He testified that he suffers from kidney problems and depression and that his therapist had advised him to obtain a dog.  He produced a “Service Animal Registration certificate and photo ID for his dog as an Emotional Support Animal,” provided by the “U.S. Service Animal Registry.”

The court observed that no-pet clauses are generally enforceable, although they must yield when the need for reasonable accommodation of a disability is established.  To establish a claim for reasonable accommodation under the Human Rights Law, an individual must demonstrate that he or she is disabled; that because of the disability, he or she needs the animal in order to use and enjoy the apartment, and that the reasonable accommodations could be made to allow him or her to keep the animal.  Here, the court found that the tenant’s son failed to submit evidence that the dog helped him with his symptoms of depression or kidney disease, and failed to present medical or psychological evidence, such as testimony from medical professionals, that the dog was necessary for him to enjoy the apartment.  The dog’s service animal registration was unpersuasive because “the registration of a dog with this entity can be completed by anyone after paying a fee and there is no case law or statute requiring this Court to accept this entity’s determination that a dog is deemed to be an emotional support animal.”  Accordingly, the landlord could enforce its no-pets clause.

Landlords and boards must proceed cautiously if they wish to dispute a resident’s claim to be a disabled person entitled to the reasonable accommodation of a support animal.  While the landlord may require the tenant to provide some medical evidence supporting the diagnosis of disability, the courts and agencies have limited the landlord’s ability to demand back-up documentation or more detailed explanations.  A landlord or board that challenges a tenant’s claim of disability and loses may be required not only to allow the animal to remain, but also to pay the tenant’s attorneys’ fees and, in some cases, substantial compensatory and punitive damages.  To avoid this result, all “no pets” buildings should have policies and procedures in place governing requests for reasonable accommodations and should consult with counsel when a request is received.