FAQs About the NYC Pet Law and 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 or her housing. This may include allowing tenants with a disability to keep an assistance animal, regardless of a “no-pets” policy. Under the law, an assistance 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 an assistance 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 or her apartment.
Q Can NYC’s Pet Law override a no-pet clause in a lease?
A Yes. Under the Pet Law, a landlord is deemed to have waived his right to enforce a no-pet clause if:
- The tenant has kept a pet “openly” and “notoriously;”
- The landlord or his agent has known or should have known of the pet for three months or more; and
- The landlord doesn’t begin a court case to enforce the no-pet clause.
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 tenants. If many tenants come to court complaining that their rights as tenants are substantially impaired by a particular animal’s behavior, then the court may find that the animal is indeed a nuisance. However, courts have held that an isolated incident (such as an occasional accident in the lobby) doesn’t make a companion animal a nuisance. If a landlord 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.
It’s important to note that simply keeping a pet openly for three months isn’t enough to get protection under the Pet Law. The landlord must have knowledge of the pet. In some cases, it’s enough that the landlord should have known about the pet. For example, if someone employed by the landlord, such as a super or a doorman, has seen the pet, then a judge may find that the landlord should’ve known about the animal’s presence.
This is true even if the employee never actually told the landlord about the pet. It’s more difficult to prove that the landlord should’ve known about the pet in a large complex with multiple buildings because it will be harder to show than an employee of the landlord actually saw the pet.
Enforcing Pet Restrictions
Q When and how must the landlord start a legal action under the Pet Law?
A Under the law, a landlord must actually commence a lawsuit within the three-month period to enforce his or her rights and not simply serve notice that he or she intends to sue. Commencement of a lawsuit means service of a “summons and complaint” or of a “notice of petition and petition.” Be aware, however, that where the landlord’s lawsuit is dismissed on technical grounds, such as improper service of legal papers, a new lawsuit may be considered timely as long as the original one was.
Q What are a disabled tenant’s rights regarding animals?
A A no-pet clause or other pet restriction 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.
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.
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.
Verification of Need for Assistance Animal
Q What should a landlord do if an applicant or tenant doesn’t want to submit documentation from her healthcare provider to keep an assistance animal?
A Whenever someone asks for an exception to your pet policies to keep an assistance animal, it’s important to know the rules about when and how you can ask for documentation. If the applicant or tenant has an obvious disability-related need for an assistance animal, then you can’t ask for more documentation—you must make an exception to your pet policies so that she can keep an assistance animal. For example, an obvious disability and need would include a guide dog used by a blind or visually impaired person.
If, on the other hand, the applicant or tenant doesn’t have an obvious disability-related need for an assistance animal, then you 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 an initial inquiry, it’s still 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.
We’ve included Model Forms: Use Forms to Verify Tenant’s Need for Assistance Animal, that you can use to get the contact information for the tenant or applicant’s healthcare provider, as well as a verification form to send the provider.
Q Must I accept a tenant’s “assistance animal certificate” or letter from a doctor, even if it doesn’t look legitimate?
A No. If a tenant gives you a certificate or doctor’s note, you can explain that your policy is to contact the tenant’s third-party provider directly for verification. You can use our model forms to get the tenant’s consent to contact the healthcare provider and get the required verification information—and no more—from that provider.
Multiple Assistance Animals
Q Can a disabled tenant request a reasonable accommodation to keep more than one assistance animal?
A Yes. Nothing in the Fair Housing Act prevents this. 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. For example, in one case, a Section 8 tenant’s lease prohibited her from keeping dogs or cats as pets. At some point the tenant got a dog, which the landlord allowed her to keep as an accommodation for unspecified reasons. But the landlord denied the tenant’s request to get a second dog. The tenant took in a second dog anyway without notifying the landlord. Later, the landlord discovered the second dog and received complaints that the dog was disturbing the neighbors. The landlord immediately sent the tenant a notice to cure. The tenant claimed in response that she had had the second dog for more than 90 days and that the landlord therefore had waived its right to seek its removal. The tenant didn’t claim at that time that she had a disability or that the second dog was an assistance animal. The landlord then sued to evict the tenant, and the tenant in turn filed housing discrimination complaints with HUD and DHR, who dismissed the tenant’s complaints. The tenant appealed and lost.
The housing court then ruled for the landlord but stayed the eviction warrant for six weeks to let the tenant get rid of the second dog. The tenant didn’t appeal that decision. Instead, the tenant sued the landlord in federal court, claiming that the landlord had violated her civil rights based on her disability. The tenant got a temporary restraining order stopping her eviction while she pursued her federal court case. The tenant then sought a preliminary injunction, while the landlord asked the court to dismiss the case.
Ultimately, the court ruled against the tenant. The 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. The tenant identified no major life activity that was impaired by her diabetic condition. And the tenant walked her dogs and worked seven days a week as a home health aide, commuting daily via public transportation. The 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, July 2014].
See The Model Tools For This Article
|Use Forms to Verify Tenant's Need for Assistance Animal|