How to Handle No-Pet Lease Clause Violations
Even though your lease bans pets, a tenant may violate the lease by moving in with a pet—or by bringing in a pet sometime later. In either situation, you want to get the pet out. While you can always seek the tenant’s eviction as a last resort, you can first try to get the tenant to voluntarily remove the pet. But you must act quickly.
That’s because if your efforts fail, you must start an eviction proceeding within three months of discovering the pet. Under NYC law, in buildings with three or more units, a “no-pets” provision in the lease is waived if the tenant “openly and notoriously” keeps a pet for three months or more; and the owner or his agent—such as a manager, super, doorman, or security guard—knows about the pet; and the owner fails to object to the pet within that three-month period [NYC Admin. Code §27-2009.1].
In one case, an owner sued to evict a tenant for violating her lease by keeping a dog without his permission. The court ruled against the owner, who appealed and lost. The tenant showed that she had kept the dog openly and notoriously for more than three months before the owner objected. The tenant walked the dog through the public hallway and outside the building twice a day. And the owner’s employees saw the dog when they performed repairs to the tenant’s apartment, and the super talked with the tenant’s family about the dog [149th St., LLC v. Rodriguez, February 2016].
Here’s what to do to get the tenant to voluntarily remove the pet.
Four Steps to Get Tenant to Remove Pet
Step 1: Check lease. If you find out a tenant has a pet, check your lease to make sure it bars pets. Most leases bar pets unless the owner consents to the pet in writing. The lease clause that prohibits tenants from keeping a dog, cat, or other pet in the rental unit without your permission is a substantial requirement of their tenancy. A tenant who keeps a pet in violation of a no-pets clause in a lease can be terminated [200 Associates, LLC v. Haupt, January 2011].
Step 2: Give verbal warning. Ask the tenant to get rid of the pet. Inform the tenant that the lease bars him from keeping a pet in the apartment.
Step 3: Send polite letter. If, despite your verbal warning, the tenant refuses to get rid of the pet, send him a polite but firm letter asking him to do so. We’ve provided a Model Letter: Polite Letter Asking Tenant to Remove Dog, that you can adapt to fit your particular situation.
Step 4: Send get-tough letter. What if your polite letter doesn’t work? You’ll have to get tough. Send a second, more forceful letter. We’ve provided a Model Letter: Tough Letter Threaten Eviction. Our letter:
- Tells the tenant that he’s violating his lease;
- Points out the specific lease clause that bars pets;
- Points out court cases in which owners have won the right to evict tenants who refuse to get rid of an illegal pet. For example, in one case, a tenant failed to prove he had kept the dog “openly and notoriously” for more than three months [Barry Martin 4410 Corp. v. Santiago, July 2009]. In another case, a tenant was given 60 days to get rid of her two dogs or face eviction [200 Associates, LLC v. Haupt, January 2011].
- Makes it clear to the tenant that if he doesn’t remove the pet by a set deadline, he risks being the target of an eviction lawsuit.
Get Confirming Letter from Tenant
Both the polite and get-tough letters ask the tenant to confirm in writing that he’s gotten rid of the pet. Once you get the tenant’s written letter, you’ll no longer be “on notice” that the tenant has the pet. If it turns out that the tenant lied and didn’t get rid of the pet, you’ll still have three months from the date you find this out to sue to evict the tenant.
Because you have only a three-month window to start an eviction case after learning about the tenant’s pet, start taking the four steps as soon as you find out about it. And don’t wait more than one week between each step. This is one situation where it’s very risky to be a “nice guy.” If you give the tenant extra time to get rid of the pet, you could end up losing your right to object to the pet.
Also be prepared to follow through quickly on your eviction threat if the tenant doesn’t remove the pet after getting your get-tough letter. You must send the tenant certain preliminary legal notices before you start the court case.
But, sending these preliminary notices doesn’t start the case for purposes of the three-month deadline. You must send the tenant the actual court papers—that is, the notice of petition and petition—within the three-month period.
In one eviction case, the tenant claimed waiver, arguing that the owner didn’t start the case within three months of discovering the dog. The owner claimed that it started the case when it sent the cure notice, not when it sent the court papers. The court ruled for the tenant and dismissed the case. The case was started when the owner sent the petition. This was more than three months after the owner sent the letter admitting that it knew about the dog [Musialowski v. Perez, June 2002].
Editor’s Note: Remember, assistance animals are not pets under fair housing law, so the pet policy doesn’t apply. A no-pet clause 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 Fair Housing Act [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. For more information on the criteria for assessing requests to keep assistance animals, qualifying disabilities, and what to do when a disability isn’t obvious, you can refer to the Fall 2015 Special Issue, Handling Disputes About Assistance Animals.
See The Model Tools For This Article
|Polite Letter Asking Tenant to Remove Dog; Get-Tough Letter Threatening Eviction|