New York's Cooperative and Condominium Community
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Two cases, two questions, one about pets, the other one on life partners and residency.
How can you enforce a “no pet rule”? How do you deal with a bylaw provision that doesn’t include “life partners”?
Are Pets Permitted?
By Geoffrey Mazel
I am on the board of a co-op that is a “no pet” building and has been that way since its inception 50 years ago. In the last few years, shareholders have gotten dogs in the building and the board has been having an extremely difficult time enforcing the No Pet Rule. Please explain when a shareholder can keep the pet and when the board should start legal proceedings.
When I became an attorney many years ago and started representing co-op boards, I never imagined the amount of time and energy I would spend over disputes involving pets in cooperatives. I expend a great deal of energy enforcing my clients’ “No Pet Rule” against offending shareholders, but also spend an inordinate amount of time explaining to my board clients why they cannot enforce their “No Pet Rule” in many instances.
A number of co-ops in New York City, such as yours, have pet prohibitions in their proprietary lease and/or house rules. The prohibition against pets is commonplace and, for the most part, has existed since the cooperative corporation was formed. However, in recent years, there have been several legal developments rendering these no pet rules unenforceable. Therefore, even though a co-op may have a no pet policy, there still may be pets there – and it is legal.
In 1983, the city of New York passed a local law commonly known as “The Pet Law,” which states that a property owner, such as a co-op board, must begin a legal proceeding within three months of receiving notice that a shareholder has a pet. If the resident openly and flagrantly walked the pet in front of the management office every day, or if the superintendent came into the apartment where the pet resided, the board would need to begin the legal proceeding within three months of such notice.
If the co-op does not start legal action, the pet prohibition of that co-op’s proprietary lease or house rules is deemed waived. At that point, a shareholder may have the legal right to keep the pet. Many proprietary leases require predicate notices to be served on the shareholder before litigation can begin, giving him or her the opportunity to cure. If he or she fails to do so, a termination notice, which requires a 30-day lead time, is sent.
Even if a co-op board is able to start a termination proceeding on time, the shareholder may still be able to keep the pet if it can be shown that the shareholder is disabled. Federal, state, and city laws allow a companion pet as a reasonable accommodation for a disability. Usually the disability asserted in these cases would be mental and the shareholder would need to provide medical evidence that a companion pet would provide emotional and medical benefits.
How does the co-op board protect the integrity of its pet policy without discriminating against a disabled shareholder’s rights to a reasonable accommodation? If a board proceeds with an eviction, it can be subject to a lawsuit for discrimination and liable for punitive damages and legal fees of the shareholder.
The first thing the co-op board needs to do upon learning of the shareholder’s alleged disability and resulting need for a companion pet is to request medical evidence proving the existence of the disability. This evidence will come in the form of a doctor’s report, and it should clearly outline the nature of the disability and the medical necessity of the accommodation by the treating medical doctor. In most cases, a letter such as this is sufficient to prove a disability. If the board refuses the accommodation at this point, it could be subject to a discrimination lawsuit by the shareholder. If the board prevails, it will still have incurred costs associated with defending such a lawsuit including legal fees and the insurance deductible, if there is coverage. It is a losing proposition for the board.
A good rule of thumb is to get the board’s counsel involved early to eliminate any potential liability and to ensure that proper decisions are made. This issue is not going away any time soon.
Are Partners Permitted?
By Robert Braverman
I’m an attorney and a board member. I very much appreciate your kind attention to this issue. Here are the facts: 1. A shareholder wants to give some of her shares to a “life partner.” The proprietary lease limits the occupancy of apartments to certain listed family members – not including “life partners.” 2. The bylaws of the corporation provide that transfer of shares must be for the entire amount of shares – no partial transfers. Does the bylaw provision violate the shareholder’s right of alienation of her shares and is the bylaw provision enforceable?
A same-sex life partner would be permitted to reside with his or her partner in a cooperative apartment even where the proprietary lease does not list the partner as being part of the shareholder’s family.
The terms “spouse” and “family” have been interpreted by long-standing case law to include gay domestic partners. In Braschi v. Stahl Associates, the Court of Appeals first articulated the concept that gay life partners are considered “family” members by New York State law and are thus entitled to succession rights in rent-stabilized apartments. The New York State Division of Human Rights has consistently held that Braschi and its progeny apply to the transfer, assignment, and bequests of shares in cooperative apartments. Moreover, for those same-sex couples who have yet to marry but have decided to register as domestic partners, the administrative code confers several benefits, two of which provide for their inclusion in the definition of the word “family” under the housing maintenance and building codes.
To the extent that the proprietary lease permits inter-familial transfers of shares, such provisions would apply equally to same-sex life partners. Accordingly, if the cooperative’s past practice and its governing documents permit a shareholder to add a spouse to the stock and proprietary lease, then a life partner would have an equal right to be added.
As to whether the bylaw provision would be an unreasonable restraint on alienation, court rulings have been mixed. Some courts have treated shares of stock as personal property, and thus not subject to the rules restricting unreasonable restraint upon alienation; others have held that shares of a cooperative housing corporation should be treated as real property because they contain “mixed” characteristics of personal and real property. Although we could find no case law on the specific issue of whether a restriction on the transfer of a portion of the shares of stock allocated to an apartment would be an unreasonable restraint on alienation, we believe that such a restraint would ultimately be found to be reasonable because severing the shares could be viewed as antithetical to “preserving the character” of the relationship between the corporation and its shareholders.
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