A co-op board has updated its pet policy, specifying approved entrances and exits and forbidding pets from lingering in common areas, including lobbies and laundry rooms. The rule applies to service dogs and emotional support animals, and it carries a $225 fine for every violation. Can a co-op board do this?
"The board has the right to make business decisions regarding rules for pets and many other things in the operation of the co-op,” attorney Steve Wagner, a partner at Wagner Berkow, tells Brick Underground. “The rules do not have to be reasonable.”
But the rules do have to meet the standard of the Business Judgment Rule, which holds that as long as boards establish rules for their buildings that are in good faith and in the best interests of shareholders, courts will not interfere – even if shareholders find these rules unfair. However, this new pet policy might be in conflict with laws regarding service animals.
"The second legal issue is whether the rights of individuals with disabilities who may require a service animal or a comfort animal will override the rules adopted by the board [under] the Business Judgment Rule," Wagner says. "A rule that prevents a service or comfort animal from staying with its owner, if it is needed to use and enjoy the owner’s home, will violate the city, state and federal human rights laws."
Under New York state law, public housing providers must make "reasonable accommodations" for people with disabilities who require service animals. "Based on the provisions of the Americans with Disabilities Act, a tenant is permitted to have a service animal accompany them at all times, as medically necessary, and a landlord cannot limit the areas in which the service animal is permitted," says attorney Andreas Theodosioua partner at Braverman Greenspun.
However, it is unclear whether it is legal to fine the owner of an emotional support animal – which is distinct from a service animal – for violations of a co-op's pet policy.
"There is an ongoing dispute about whether fines, fees, and rules can be applied to service dogs, dogs actually trained for a specific disability, versus emotional support pets, which are simply evidenced by a doctor's note and sometimes a $29.99 certificate from the Internet," explains attorney Dean Roberts, a member at Norris McLaughlin.
Boards need to think twice before putting up a NO DOG LOITERING sign in the laundry room.
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