How to Deal with a Tenant's 'Nuisance' Pet
Tenants often have pets that cause problems. For example, a tenant’s dog may relieve itself in the building’s hallways, bark at all hours of the day and night, or threaten other tenants. You can get rid of problem pets, whether or not the tenant’s lease bars pets. To do so, you must begin an eviction case against the tenant and prove that the pet creates what’s known legally as a “nuisance.” This means that the pet is a threat to the health, safety, or welfare of the other tenants in your building.
Practically speaking, it’s rare to actually evict a tenant over a pet. Most likely, eviction cases based on a nuisance pet will get settled. The tenant agrees to control the pet and keep it from creating any further problems, to get rid of it, or to move out of the apartment by a mutually agreeable date. In return, you agree to drop the eviction case. The typical settlement also gives you the right to take final eviction steps against the tenant—without having to start a new case—if a problem recurs within a certain amount of time.
Even if the case doesn’t get settled and a court rules the pet is a nuisance, eviction rarely follows immediately. Judges will normally give a tenant a chance to get rid of the pet before ordering the tenant’s eviction. So, at the least, you should be rid of the pet. Here’s what you should know before you start an eviction case based on a nuisance pet.
No Three-Month Limit
You can sue to evict a tenant for having a nuisance pet at any time after the pet becomes a problem. This kind of eviction isn’t covered by the city’s “pet waiver law.” This law says that if you’re suing to evict a tenant for keeping a pet in violation of the lease, you must start the case within three months of discovering the pet [NYC Admin. Code Sec. 27-2009.1(b)].
The law explicitly states that the pet waiver “shall not apply where the harboring of a household pet causes damage to the subject premise, creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure” [NYC Admin. Code Sec. 27-2009.1(d)].
In one case, an owner who sued to evict a tenant for keeping a dog without the owner’s permission also claimed that the dog created a nuisance by annoying and disturbing other tenants. The tenant claimed waiver because the owner waited more than three months to object to the dog. The tenant asked the court to dismiss the case without a trial, but the court refused because even if the owner had waived the right to evict the tenant under the NYC Pet Law, there were questions of fact as to whether the dog was creating a nuisance at the building. A trial was needed to decide the case [Concourse Green Associates, LP v. Hernandez, Sept. 2016].
Even if the pet waiver law doesn’t apply in your situation, don’t wait too long to seek the tenant’s eviction once you start getting complaints from other tenants. Your problems may escalate as other tenants could start withholding all or part of their rent, claiming you’ve breached the “warranty of habitability” by not taking action against the tenant with the problem pet. The warranty of habitability requires you to keep apartments free from conditions that could be dangerous or hazardous to tenants. If you don’t, a court can cut the tenants’ rents.
When Is Pet a Nuisance?
If you and the tenant can’t settle the case, it probably won’t be easy to get a court to rule that the tenant’s pet is a nuisance. Judges assume that by living in New York City, your other tenants have to expect some noise and inconvenience. You must show that a tenant’s pet is creating problems above and beyond what’s normal for New York City living. The pet must severely disrupt the lives of other tenants in the building—and do it often.
Judges will look for a pattern of objectionable or recurring conduct. In one case, an owner sued to evict a tenant for nuisance based on a violation of the building’s no-pet policy. One of the tenant’s dogs bit another tenant. The other tenant had sued the owner, and the building’s insurance premium was increased. The tenant asked the court to dismiss the case, claiming that the dog bite incident occurred in 2011 and was the only incident involving her dog. The court ruled for the tenant and dismissed the case. The owner wasn’t able to show recurring conduct that rose to the level of nuisance [Kismo Apartments, LLC v. Morales, Aug. 2015].
In another case, an owner sued to evict a tenant for nuisance because the tenant kept a dog in violation of his lease, the dog bit a child outside the building, and this caused a confrontation between the tenant and the child’s mother. The tenant asked the court to dismiss the case, claiming that the incidents described by the owner didn’t amount to nuisance. The court agreed with the tenant and dismissed the case. The claimed confrontation with the child’s mother was a continuation of a single incident, not a separate act. The dog weighed 16 pounds, and the child required no medical attention as a result of the claimed dog bite. This wasn’t a case of vicious and repeated attacks by a tenant’s dog [236-1 Development Assoc. LP v. Hernandez, May 2015].
Persistent odors, the creation of health hazards, building damage, and an excessive number of pets may be persuasive factors in building a nuisance case. For example, in one case, the owner and four tenants testified that a tenant kept 10 pigeons and two dogs in her apartment. This created offensive odors, unusual noise, and vermin infestation, which substantially interfered with the comfort and safety of other tenants. The tenant claimed that this wasn’t true. The court ruled for the owner and based its determination on all the evidence presented [Piazza v. Greitzer, Feb. 1996].
It’s important to note that a tenant who keeps a nuisance pet may also be violating a city law or regulation. For example, Section 161.01 of the Health Code bars a person from keeping wild animals (defined as “an animal of a species which is wild, ferocious, fierce, dangerous or naturally inclined to do harm”); Section 161.09 of the Health Code bars a person from keeping barnyard-type animals—like rabbits, poultry, sheep, or goats—without a permit; Section 17-343 of the city’s Administrative Code bars a person from keeping a “dangerous” dog; and Section 24-222 says people can’t allow a pet under their control to cause unnecessary noise.
How to Prove Pet Creates Nuisance
Here’s what you’ll need to prove a winning case:
Complaint letters from other tenants. If other tenants complain to you about one tenant’s pet, ask them to put their complaints in writing and send the complaint letters to you. Tell them to specifically describe any incident involving the pet. Ask them to include the dates and times of these incidents.
Although these complaint letters may not be admissible as evidence in court, your lawyer can use them to draft the preliminary notice that must be sent to the offending tenant before starting the eviction case. In the notice, you’re required to give the tenant details as to what he’s done wrong. If you don’t, the tenant can later get the case thrown out based on a defective notice.
Testimony from other tenants. Other tenants must be willing to come forward to testify against the tenant with the nuisance pet. Judges will be much more skeptical if the only people testifying against the tenant are your employees or are otherwise related to you.
For example, in one case, an owner claimed that a tenant’s dog was a nuisance and dangerous. The court ruled against the owner. The owner claimed that the tenant had three dogs who barked, ran up and down the halls, and urinated in the building. But only one witness testified about one incident where a dog urinated inside the building, and the tenant’s son cleaned up afterward [RNR Realty Corp. v. Smith, Aug. 1998].
Photographs of damage. Take photos of any damage the tenant has caused. This can help you show that the pet is a nuisance.
Remember to consult an attorney before starting an eviction case in which you must prove that the tenant has a nuisance pet. You must carefully gather evidence and discuss its presentation with your attorney to have as strong a case as possible.