New York's Cooperative and Condominium Community

Habitat Magazine October 2020 free digital issue

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Dear Habitat

Cooperative and condominium boards have considerable latitude under the Business Judgment rule in deciding whether to impose a pet fee. Some court decisions require that fees be reasonably related to the costs incurred by the cooperative or condominium, so the amount of any pet fee cannot be excessive. Boards should be advised, however, that the U.S. Department of Housing and Urban Development does not consider emotional support animals to be pets, and pet fees cannot be charged to the owners of emotional support animals. regarding fees for cats, I have heard of boards charging fees but have never seen a case challenging the fee. The board’s Business Judgment rule authority will likely sustain such a fee, provided the amount is not excessive. But if a court allowed a case to proceed, I suspect the board would have a difficult time justifying a fee for cats. 

James W. Glatthaar
Partner, Bleakley Platt & Schmidt

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People, and the pets they live with, share close quarters in New York City. It behooves a co-op to have clear, enforceable, reasonable, and valid rules to avoid conflicts with shareholders and to create a harmonious living environment for all residents. That being said, in general, courts have upheld reasonable restrictions on pets. Assuming your co-op has properly enacted reasonable weight restrictions and a monthly fee for dogs in accordance
with your proprietary lease and bylaws, it seems it could be possible 

to charge a fee for having a cat. I have honestly never heard of such a fee for a cat, but there is a first time for everything. Normally, fees for
dogs are in place to account for the additional wear and tear that a dog will have on the common areas, and perhaps to serve as a disincentive to
shareholders from getting dogs, thus keeping the number of dogs down in a particular building. Because cats are usually restricted to the leased
apartment only, however, it is not so obvious why your board member feels that a monthly fee should apply to all pets. This would be something
to discuss more fully with that board member, as well as your management team and your attorneys before enacting any such rule. Your board
may decide the best tactic here is not to make the fur fly with residents and to let sleeping cats lie.

Deborah B. Koplovitz
Shareholder, Anderson Kill

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Co-op boards have wide discretion when implementing fees. However, regulated co-ops such as Mitchell-Lamas must first have fees approved by the regulators. Therefore, a fee for dogs only is highly likely to survive any legal challenge. In the majority of co-ops, pet fees relate solely to dogs, but I have seen it applied for all pets. The fee only for dog owners can be justified by the fact that, unlike most other pets, dogs leave the apartment and
travel through the common areas of the cooperative, causing damage and additional cleaning expenses not associated with other pets. 

Dean M. Roberts
Partner, Norris McLaughlin & Marcus

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