Emotional Support Animals Must Obey a Co-op's House Rules

Q: We live in a small, no-pets Westchester County co-op. Our upstairs neighbors were recently allowed to acquire an emotional support dog. The dog runs back and forth for 30 minutes at a time, and it frequently scratches a bedroom rug, waking us up throughout the night. We have shared our concerns with the neighbors, and they seemed receptive, but the problem persists. How can we balance the rights of people to have emotional support animals with our right to live peacefully? 

A: As long as this dog isn’t biting people, it’s probably not going anywhere, replies the Ask Real Estate column in The New York Times. This is borne out by recent events in an Upper West Side rental building, where a tenant has sued two of his neighbors after their emotional support dog allegedly attacked him the building's elevator — and was involved in altercations with a dozen other residents, staffers and delivery workers. If the lawsuit succeeds, the support dog will surely be living elsewhere.

Support animals are protected accommodations under county, state and federal fair-housing laws. Your co-op board could be liable for discrimination if it is found to be hostile to this dog owner, and so could you. So tread lightly.

“A neighbor can be sued in Westchester,” says Andrew Lieb, a New York housing discrimination lawyer, noting that the law allows your neighbor to sue you for emotional distress and attorneys fees. “If I was the neighbor and wanted to do something (about the support animal's behavior), I would go on a nice campaign."

Legally, the building cannot charge extra fees to this resident or limit the dog’s size or breed. Focus any complaints you have on elements of the situation that violate your building’s rules, such as unreasonable noise. You could use a decibel reader to show how loud the noise is and how long it lasts, to establish that it is unreasonable. Then make a complaint to your co-op board so the sound can be mitigated.

You can also check the building’s bylaws to see if your neighbor has sufficient carpeting. Some buildings require residents on upper floors to have 80% of the floor carpeted.

Support animals require no special training, and they're different from service animals, such as seeing-eye dogs that assist blind people. And despite widespread reports of people seeking approval of emotional support animals in order to circumvent no-pet policies, the laws are loaded in favor of people who seek an accommodation from their co-op or condo board. Yet, there are limits.

“Emotional support animals are protected," says Jonathan Roman, a real estate lawyer who practices in Westchester, "but they still need to obey any house rules."