I'm on the board of a co-op building that doesn't allow pets. Can we turn down a prospective buyer because they have an emotional support animal?
“Federal, state and city discrimination laws all say that housing providers, including condo and co-op boards, must reasonably accommodate assistance animals for disabled residents. Therefore, generally your co-op must make an exception to its no-pet policy for emotional support animals,” says Niki Khindri, an associate attorney at NYC real estate law firm Wagner, Berkow & Brandt.
Under relevant discrimination laws, assistance animals are not considered pets. “As long as a prospective buyer provides sufficient proof that they have a disability, and demonstrates that the animal is necessary to enable them to fully use and enjoy the apartment, your board would be well advised to allow the emotional support animal,” says Khindri.
Getting the correct paperwork
An attorney familiar with reasonable accommodation laws can review the documentation provided by the buyer to determine whether the board should make a reasonable accommodation to its policies for an emotional support animal. The only time a board cannot ask for documentation is when the disability is readily observable.
Your buyer needs to present a letter from a medical professional or treatment provider, such as a primary care doctor, psychologist or social worker currently treating them, stating that the buyer has a recognized disability and that the dog or cat is necessary for the person to be able to use and enjoy the dwelling.
For example, if the buyer suffers from anxiety “it might be that the animal enables them to get out of bed every morning in order to carry out daily tasks or simply helps them sleep at night,” Khindri says.
If the buyer presents a doctor’s letter, even one that looks questionable, and the application for an emotional support animal is rejected without a request for further information, your board could wind up having to defend a complaint to the NYC Commission on Human Rights.
Failure to properly review and make decisions on the documentation provided by a buyer could potentially result in civil penalties and discrimination lawsuits, says Khindri, who has seen judgments of up to $90,000 in civil penalties for boards that improperly deny an emotional support animal. “The consequences for a co-op or condo can be very steep,” she says.
If your board has been provided with an online certification for the emotional support animal, you should ask for further documentation rather than reject the request outright.
In some cases, it’s not so easy to determine from the submitted documentation whether the emotional support animal is legitimate. This is when boards are put in a tough spot—do they play it safe and grant the request, or request additional documentation supporting the person’s claims?
Boards should generally be wary of requesting detailed medical records because there’s always a risk the person requesting the accommodation will raise discrimination claims if they can show the board was acting unreasonably.
“Once legal counsel is involved these issues can be resolved fairly quickly,” says Khindri. “With the right legal representation, it’s fairly straightforward to identify a dubious application from an honest one—or at least spot the issues,” she says.
Living with an emotional support animal in a no-pet building
Once you give a buyer the green light to move in with his or her emotional support animal, the pet still needs to abide by certain rules.
“They can’t be a nuisance, they can’t unreasonably interfere with other residents' peace, or pose health or safety risks to other residents, that can’t otherwise be addressed by, for example, requiring that the tenant-shareholder or unit owner use the service elevator,” says Khindri.
If the animal continues to pose a threat to the safety or welfare of others, and this problem can’t otherwise be addressed, you can send a notice to cure for objectionable conduct. “This gives an owner 30 days to solve the problem,” says Khindri, which under certain circumstances can mean removing the animal from the premises.
“All efforts should be made to accommodate an emotional support animal but under the proprietary lease of a co-op, there are also certain acts constituting objectionable conduct that may put an owner in default or in breach of their agreement,” says Khindri. Having an aggressive animal in the building could be one of these. “In that situation, a co-op owner may face a Pullman hearing and a vote on their eviction,” she says.
New York City real estate attorney Niki Khindri joined Wagner, Berkow & Brandt in 2015 and focuses on real estate transactions, co-op and condo law, and intellectual property law. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Niki an email or call 646-780-7272.