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Emotional Support Animals in New York City Apartments with No-Pet Rules

September 23, 2016 (Link to PDF)


I. INTRODUCTION


People always ask me if my next article is going to be landlord-centric or tenant-centric.  While I like to think that all of my articles have benefits for both “sides” (indeed, while I don’t like to think in terms of “sides” at all), well…this one’s for the cats and dogs…and the folks who need them because of a mental health disability that prevents them from otherwise using and enjoying their apartments.  

I love animals.  In my home I have two 90-pound dogs (rescues), four cats (rescues), a feral cat that I feed who lives in a heated doghouse I built on the deck, a perpetually full bird feeder surrounded by sparrows, doves, mocking birds, cardinals, and blue jays, a busy squirrel feeder full of nuts (I name the squirrels), and a tiny “pond” I dug and filled with goldfish.  My family thinks that I would be better suited to a farm upstate than a Brownstone in Brooklyn.  Living with animals is something that humans have always done, and it is something that brings great comfort and joy if done correctly and responsibly.  

There is a great deal of controversy and confusion as I write this article in the fall of 2016 regarding the law as it relates to requests by tenants to keep animals in “no pet” buildings on the basis that such animals are “Emotional Support Animals” (ESA’s).  Many landlords think that ESA’s are the latest tenant end-run around no-pet rules.(end-note 1)   It has also been asserted that the ESA movement undercuts the legitimacy of people living with disabilities who have well-trained Service Animals.(2)   Those in favor of ESA’s claim that, “Emotional support animals … have been shown to alleviate the symptoms of psychiatric disorders in some individuals and allow tenants the equal opportunity to use and enjoy their dwelling.”(3) 


This article will:

(1) Define “Emotional Support Animal”: particularly distinguishing an ESA from a Service Animal;

(2) Explain the law regarding pets in New York City apartments in general; 

(3) Explore the Fair Housing Act and The New York State and City Human Rights Laws as they relate to Emotional Support Animals; and

(4) Suggest what a tenant needs to do in order to set up a strong legal claim to an Emotional Support Animal; Conversely, this will demonstrate to landlords what weak claims for an ESA looks like.

II. WHAT IS AN EMOTIONAL SUPPORT ANIMAL AND HOW IS IT DIFFERENT FROM A SERVICE ANIMAL?


An Emotional Support Animal is not a pet.  An Emotional Support Animal is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability.  An Emotional Support Animal is different from a service animal.  Service animals are defined as animals that are individually trained to do work or perform tasks for people with disabilities.  These tasks can include things like pulling a wheelchair, guiding a person who is visually impaired, alerting a person who is having a seizure.  An Emotional Support Animal is an animal (typically a dog or cat) that provides a therapeutic benefit to its owner through companionship.  The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments.(4) 

III. PETS IN NEW YORK CITY APARTMENTS IN GENERAL

Before we get to the Fair Housing Act and the State and City Human Rights Laws, let us look at a landlord’s ability to enforce a no-pets clause in a lease.  In general, even if there is a no-pets clause in a lease, if the landlord knows (or should know) about a pet in an apartment and three months goes by without the landlord taking legal action, then the pet can stay.  This is commonly referred to as the “Three-Month Rule”.  

N.Y. Code § 27-2009.1 (Rights and responsibilities of owners and tenants in relation to pets) (“the NYC Pet Law”) states:

"a. Legislative declaration. The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance.  Because household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.

b. Where a tenant in a multiple dwelling [three or more units] openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the multiple dwelling law, the housing maintenance or the health codes of the city of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.

c. It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant's rights as provided in this section.  Any such restriction shall be unenforceable and deemed void as against public policy.

d. The waiver provision of this section shall not apply where the harboring of a household pet causes damage to the subject premise, creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure."

[Emphasis supplied.]

Note that the Three-Month Rule only applies in Multiple Dwellings, buildings with three or more units.  In  Linden Hill No. 1 v. Kleiner, 124 Misc.2d 1001 (NYC Civ. Ct. Queens Cty 1984), the Court held that the Three-Month Rule applies to residential co-operatives.

The following cases interpret the NYC Pet Law.  Landmark Properties v. Olivo, 5 Misc. 3d 18, (App. Term 2nd 2004) ("[L]andlord's prolonged toleration of the dog indicated that the lease's no-pet clause was not a substantial obligation of the tenancy.")  Park Holding Co. v. Emicke, 168 Misc. 2d 133, (App. Term 1st 1996) ("Any waiver under the law is more properly limited to existing pets which are part of the household; it is not reasonably extended to future pets which were not yet in the premises … .").

In summary, a landlord waives the right to evict a tenant that has violated a pet restriction when the following elements are present:

the animal has been harbored in a residential unit in an open and notorious manner;

with the lessor's knowledge, or that of its officers, principals, agents, and/or employees; and

a holdover proceeding has not been commenced against the unit's occupants within a THREE MONTH window period.

Remember that this waiver is ineffective if the pet is a nuisance, damages the premises, or "substantially interferes with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure."

IV. THE LAW APPLICABLE IN NEW YORK CITY REGARDING HOUSING DISCRIMINATION AND EMOTIONAL SUPPORT ANIMALS

There are three main statutes under which housing discrimination liability is created in New York City -- the federal Fair Housing Act (“FHA”)(5)  and the New York State and New York City Human Rights Laws (“HRL”).  All prohibit discriminatory housing practices and are similar in most instances, except that the HRL creates more protected classes.  

A. Fair Housing Act

1. FHA in General

The FHA(6)  is a United States law intended to protect the buyer or renter of a dwelling from discrimination.  Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's inclusion in a protected class, including race, color, national origin, religion, sex, familial status, or handicap.  The FHA is enforced by the United States Department of Housing and Urban Development’s (“HUD”) Office of Fair Housing and Equal Opportunity (FHEO) and HUD's Office of General Counsel.(7)   

Individuals who believe they have experienced housing discrimination can file a complaint with FHEO at no charge.(8)   Where a complaint is filed with FHEO, it will investigate and prosecute where appropriate.  Victims of housing discrimination may instead go through the courts rather than HUD and FHEO if they choose since there is a private right of action under the FHA that confers jurisdiction in the federal district courts.

A plaintiff may establish discrimination under the FHA under three theories: disparate treatment, disparate impact, and/or failure to make a reasonable accommodation.  Echeverria v. Krystie Manor, LP, 2009 WL 857629 (EDNY 2009).  

2. FHA and Reasonable Accommodation 

Discrimination under the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”  42 USC §3604(f)(3)(B).

To prove that a housing provider or homeowners association failed to accommodate a disability reasonably, a plaintiff-tenant must prove the following things.

Tenant must prove that he or she suffers from a handicap within the meaning of FHA.  The definition of “handicap” under the FHA is, “a physical or mental impairment that substantially limits one or more major life activities.”  42 USC § 3602(h)(1).  In Durkee v. Staszak, 223 A.D.2d 984 (3rd Dept., 1996), although the petitioner did obtain a letter from a physician stating that “[a] forced separation of [the petitioner] from his dog for even a short period will adversely affect his mental health and result in a deterioration of his emotional condition,” the complete absence of objective medical findings to support this conclusory opinion justified its rejection.

Tenant must prove that the defendant-landlord knew or reasonably should have known of the disability and that the requested accommodation may be necessary to afford “an equal opportunity to use and enjoy the dwelling”.  42 USCA § 3604(f)(3)(B).

Tenant must prove that the accommodation is reasonable.  As for reasonable accommodation, courts have found that allowing a disabled tenant to own a pet is, in general, a reasonable accommodation.  “Implicit nonetheless in the text of the FHA is the understanding that while reasonable accommodations to achieve necessary ends are required, some accommodations may not be reasonable under the circumstances and some may not be necessary to the laudable goal of inclusion.  The requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well.”  Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995).  

Tenant must prove that the landlord refused to make the accommodation.  Echeverria v. Krystie Manor, LP, 2009 WL 857629 (US Dist. Ct. EDNY 2009); Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005).

3. To establish a strong case for an ESA under the FHA the tenant must prove that the animal is necessary because of the handicap in order for tenant to use and enjoy the apartment.

To establish a strong case for an ESA under the FHA the tenant must prove that the animal is necessary because of the handicap in order for tenant to use and enjoy the apartment.  There needs to be a, “direct linkage between the proposed accommodation and the ‘equal opportunity’ to be provided to the handicapped person.  This requirement has attributes of a causation requirement.”  Bryant Woods Inn v. Howard County, Maryland, 124 F.3d 597, 604 (4th Cir. 1997).  

In Landmark Properties v. Olivo, 5 Misc.3d 18 (9th & 10th Depts, 2004), a tenant failed to introduce sufficient evidence to establish his handicap and the necessity of keeping a dog to use and enjoy the apartment, and thus, failed to establish that he was entitled to keep the dog for therapeutic reasons as a reasonable accommodation pursuant to the Fair Housing Act; tenant submitted only the ambiguous statement of his physician that depressed people may benefit from having pets and notes from his medical records that he was anxious about possibly losing his dog.  


4. Under the FHA Does an Emotional Support Animal Need Training?

Unlike a Service Animal, an Emotional Support Animal does not need any special training.  Overlook Mut. Homes, Inc., 666 F. Supp. 2d 850 (holding an ESA is a reasonable accommodation required under the FHA and does not require individual training).(9)   

B. Human Rights Law

1. Human Rights Law in General


There is both a New York State(10) and New York City(11) Human Rights Law.  We will refer to both interchangeably as the “HRL”.

The HRL prohibits discriminatory housing practices by owners, brokers, and managing agents of residential and commercial properties on the basis of race, creed, color, national origin, sex, sexual orientation, age, disability, marital or familial status, and source of income.   

Complaints of housing discrimination under the HRL may be investigated and prosecuted by the New York State Division of Human Rights and/or the New York City Commission on Human Rights.  Plaintiffs can file administrative proceedings with the New York State or New York City Human Rights Division and/or Commission without cost to themselves.  Such proceedings can result in compensatory and/or punitive damages.(12)   

A plaintiff also has an option to file a state and/or federal complaint seeking a jury trial for compensatory and/or punitive damages.  Thoreson v. Penthouse Intern., Ltd., 80 N.Y.2d 490 (1992); Sirianni v. Rafaloff, 284 A.D.2d 447 (2nd Dept. 2001).

In housing discrimination cases under the HRL, remedies may include a "cease and desist" order, an "affirmative action" directive, a change of policy or practice, provision of services, compensation for emotional distress, punitive damages, and/or civil fines and penalties, among others.  Exec. Law § 297(4)(c); see also New York State Commission for Human Rights v. E. Landau Industries, Inc., 57 Misc. 2d 918 (Sup. Ct. Westchester Cty. 1968).  In housing discrimination cases under the HRL, violations of the state Human Rights Law may result in punitive damages in an amount up to only $10,000.00 as well as compensatory damages, which includes compensation for emotional distress; Hill v. Airborne Freight Corp., 212 F.Supp.2d 59 (E.D.N.Y., 2002) for each aggrieved party.(13)   

2. HRL and Reasonable Accommodations


To establish that a violation of the Human Rights Law with respect to an ESA occurred, plaintiff must show that:

a reasonable accommodation should have been made, 
the complainants must demonstrate that they are disabled,
they are otherwise qualified for the tenancy, 
because of their disability it is necessary for them to keep the animal in order for them to use and enjoy the apartment, and 
reasonable accommodations could be made to allow them to keep the animal.  Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879 (2d Dep’t 2009), leave to appeal denied, 13 N.Y.3d 714, (2009).

Making “reasonable accommodations” may mean that an owner is required to allow a disabled tenant to keep a pet in spite of a “no-pet” rule, where the pet assists the tenant in coping with her/his illness.  Echeverria v. Krystie Manor, LP, 2009 WL 857629 (E.D. N.Y. 2009), (a landlord’s refusal to let an apartment to a disabled person who had a companion dog could be a violation of the Fair Housing Act and the New York Human Rights Law.)    

3. To establish a strong case for an ESA under the HRL the tenant must prove that the animal is necessary because of the disability in order for tenant to use and enjoy the apartment.

To establish a strong case for an ESA under the HRL the tenant must prove that the animal is necessary because of the disability in order for tenant to use and enjoy the apartment.

Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879 (2d Dep’t 2009), leave to appeal denied, 13 N.Y.3d 714, (2009), is a VERY important case in this area.  In Kennedy, the court held that:

"the complainants submitted evidence that the dog helped them with their symptoms of depression. Nonetheless, they failed to present any medical or psychological evidence to demonstrate that the dog was actually necessary in order for them to enjoy the apartment. Accordingly, the SDHR’s determination was not supported by substantial evidence."

Also worthy of substantial attention here is Matter of One Overlook Ave. Corp. v DHCR, 8 A.D.3d 286 (2nd Dept. 2004), where the court held:

"To show that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant must demonstrate that her son was disabled, that he was otherwise qualified for the tenancy, that because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog …Here, the complainant failed to demonstrate through either medical or psychological expert testimony or evidence that her son required a dog in order for him to use and enjoy the apartment. Accordingly, the respondent’s determination was not supported by substantial evidence."

From these New York State appellate cases, we see that there has to be a solid demonstration made, via admissible evidence, that the animal is NEEDED, because of the disability, in order for the tenant to use and enjoy the apartment.

V. WHAT A TENANT NEEDS TO PREPARE, AHEAD OF TIME, TO SET UP A STRONG LEGAL CLAIM TO AN EMOTIONAL SUPPORT ANIMAL


From the review of the above statutes and cases and based upon my own experiences in this area, I will next recommend actions that a tenant may take when petitioning a board or landlord for a waiver of the no-pet policy.  

A. Risk Analysis – are you sure you want to do this?

If you have ever worked with me, you know that there is no strategic case plan that does NOT include a Risk Analysis and Mitigation Plan.  I find that most people neither assess nor deal with risk as systematically as they should.  The risks of seeking to get an ESA are as follows, and should be carefully considered before embarking on such course of action.

Here’s where I get preachy.  Owning an animal is a tremendous responsibility – it is a commitment of time and resources that is akin only to that of having a child (I have a bunch of those as well, so I know.)  An animal needs you for EVERYTHING – water, food, medical care, companionship, safety, exercise, fresh air, natural light.  What’s more, the pet will need you for these things for probably about a decade.  My last Shepherd-Doberman rescue lived for twelve (12) years.  Cats can live for two decades.  Your relationship with your animal needs to be able to withstand changes in your personal life – a new job, a marriage, having children.  Animals are really expensive.  Think about it, is all I am saying.

Another “risk” of heading down the ESA road is that you will be forced to share that you have a mental disability (although you and your doctor do not need to describe what the mental disability is) with your managing agent, landlord, or board - people who you may be at odds with already.  If the case goes to court, written evidence relating to your mental health will become part of a public record.  While there is certainly no shame in having any disability, including but not limited to a mental health issue, it has simply been my observation that many of my clients are wary about this aspect of the process.  

Finally, if you do not take my advice (below), and if you adopt the animal before taking the steps that I am suggesting here, you are risking losing the apartment or being forced to get rid of your pet.  

All I ask of my clients is that they think through the hard stuff before they start down any legal road.  

B. Make sure the tenancy is not otherwise vulnerable.

If you request an ESA and you are a free-market tenant, then the landlord might well end up simply refusing to renew your lease at the end of your lease term.  Note that the landlord cannot refuse to do so based on your inclusion in a protected class, i.e. because you are disabled.  The landlord may, however, attempt to concoct another legal reason for not renewing your lease, i.e. the landlord may state that he will only renew at a much higher rent.  While I think that a landlord failing to renew a tenant who just asked for a reasonable accommodation is courting big trouble, I am pointing out that this is another front that those desirous of an ESA might be forced to do battle on.  

If you are Rent Stabilized or a cooperative shareholder, I like to make sure that the tenancy is not vulnerable for some reason independent of the ESA request.  If, for example, the tenant is having great difficulty affording the legal rent or the monthly maintenance, then I am less enthusiastic about asking for permission for an ESA.  

C. Document the disability and connect up why the animal is needed because of the disability for tenant to “use and enjoy the apartment”.


This step is vital.  You MUST document the disability and connect up why the animal is needed because of the disability for tenant to use and enjoy the apartment.

The recent news stories footnoted in the beginning of the article speak of websites where you can answer some questions and get a letter from a therapist that you never met, which supposedly documents one’s need for an ESA.  My preference in these cases, however, is not to rely on such websites, but rather to have a tenant-client document the disability with preferably with some well-respected local therapist or doctor.  In a perfect world, the therapist or doctor would be available to testify and an expert witness, if need be.   

The letter documenting the disability should explain that the tenant/patient suffers from a disability within the meaning of FHA or HRL, although the letter does not have to disclose what that mental health disability is.  

If you recall the Kennedy and Overlook cases discussed above, you will see that this is very important -- The letter that seeks to establish the tenant/patient’s need for an ESA must state that the requested accommodation is  necessary because of the handicap to afford “an equal opportunity to use and enjoy the dwelling” (FHA language) and/or “because of their disability it is necessary for them to keep the animal in order for them to use and enjoy the apartment” (HRL language).  

Your lawyer should discuss the tenant/patient’s legal needs with the therapist or doctor via a telephone conversation, not an email or in writing, prior to the preparation of the letter.  Written communications between lawyers and expert witnesses are subject to discovery under certain circumstances.

D. Ask first; adopt second  -- maybe.

There is an argument to be made that it makes sense, in some buildings, to adopt a pet, keep it “openly and notoriously”, i.e. do not hide the animal when traversing in common areas of the building with it, and hope the three months passes with no legal action.  Based on the above-discussed Three-Month Rule, this would do the trick – tenant can keep the animal as a pet and not have to resort to any of this ESA stuff.  But "hope" is not a "plan".  

I am a bigger fan of asking first, and adopting second.  I think this is both more respectful of one’s landlord and neighbors and it also avoids an argument that we see landlords making in the above case law – that the tenant did not manifest the need for this accommodation until they got caught with an unauthorized animal, i.e. the ESA request is an afterthought, a fallback position, a lie.  

Under the FHA, a claimant has to prove that a defendant knew or reasonably should have known of the disability and the defendant refused to make the accommodation.  This typically would presume that tenant asked first, although a request for a reasonable accommodation can be made at any time.


E. Watch out for the never ending interactive process.

After your request for a reasonable accommodation is made, the landlord is required to enter into an interactive process with you, the tenant, to attempt to accommodate your needs.  

In a 2004 Joint Statement by the Department of Justice and HUD addressing reasonable accommodations under the FHA, the agencies admonished housing providers to engage in an open discussion with disabled individuals to explore alternative accommodations where the requested one is unreasonable.  The statement further reads: 

"An interactive process in which the housing provider and the requester discuss the requester's disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider."(14)  

I have encountered the phenomena of the “interactive process” turning into a slow moving discussion with landlord that goes on forever and never seems to conclude.  I would argue that this is a form of denial of tenant’s request.  Watch out for such a tactic.

F. Choose a the right animal; “reasonable accommodation” means reasonable.

The inclusion of the animal in your home should be a “reasonable” accommodation, which means that the animal needs to be a good neighbor – small is probably better than large.  The pet cannot be dangerous, make a lot of noise, or cause odors.  See the Bronk case above.


VI. CONCLUSION

I never think that it is unreasonable to ask non-lawyers to engage with the law.  Both tenants and landlords need to put effort into understanding the statutes and case law in this area, and both need to consider the needs of – each other, all the residents of a building, and the animals themselves.  As usual in the modern era of NYC Housing, there are no easy answers.  

I welcome your questions and comments.


Endnotes

1.  See More New Yorkers Turning to Emotional Support Animals to Fight Depression, Anxiety, AMNY, 10/15/2015, Shelia Anne Feeney.  http://www.amny.com/news/more-new-yorkers-turning-to-emotional-support-animals-to-battle-anxiety-depression-1.10968603.

2. See Pets Allowed 10/20/2014 the New Yorker, Patricia Marx.  This article is very funny and well researched.  http://www.newyorker.com/magazine/2014/10/20/pets-allowed.

3. Christopher C. Ligatti, No Training Required: The Availability of Emotional Support Animals As A Component of Equal Access for the Psychiatrically Disabled Under the Fair Housing Act, 35 T Marshall L Rev 139, 142 [2010].  This law review article is awesome and a must read for any practitioner considering bringing a case in this area.

4. https://www.animallaw.info/article/faqs-emotional-support-animals; Wisch, Rebecca (2013); "FAQs on Emotional Support Animals"; The Animal Legal & Historical Center Michigan State University College of Law (2015).

5.  We are not going to be talking about the Americans with Disabilities Act, because that legislation applies only to Service Animals and does not apply as broadly to housing as the Fair Housing Act.

6.  The FHA was enacted as Title VIII of the Civil Rights Act of 1968, and codified at 42 U.S.C. 3601-3632, with penalties for violation at 42 U.S.C. 3631

7.  42 U.S. Code § 3608; http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp.

8.  http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint.

9.  See also 35 T. Marshall L. Rev. 139, Thurgood Marshall Law Review, Spring, 2010, No Training Required: The Availability Of Emotional Support Animals As A Component Of Equal Access For The Psychiatrically Disabled Under The Fair Housing Act, Christopher C. Ligatti, 2010.  

 10.  Article 15 of the Executive Law §§ 290-301.

11.  New York City, N.Y., Code § 8-107.

12.  http://www.nyc.gov/html/cchr/html/complaint/filing-complaint.shtml.

13.  See Exec. Law § 297(4)(c)(iii) and (iv); See also https://www.dnainfo.com/new-york/20160614/prospect-lefferts-gardens/how-emotional-support-animals-are-upending-no-pet-rules-nyc-buildings.

14.  Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act, May 17, 2004, found online at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf  (hereinafter “Joint Statement”).

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The Difference between a Sub-tenancy and An Illusory Tenancy – MICHELLE’S MONDAY MANDAMUS!

September 19, 2016:  This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".

Hi, Michelle here.  I am the LandlordsNY “Legal Expert” (you can see my profile on the expert’s page).  My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people.  Let me know if this is helpful.  These questions are excellent, keep them coming.

Question:  “We started a simple licensee proceeding to remove a roommate who wasn't on the lease.  Her lawyer [answered] that the prime tenant was illusory.  What I am trying to figure out is what is the difference between sublet and illusory tenancy?  Is there a time frame how long someone needs to be in an apartment to be considered an illusory tenancy?”

Answer:

So your question is – How does a court decide if a tenant is real and the occupant is a subtenant, as opposed to the tenant being “Illusory” and the alleged subtenant really being the prime tenant? 

The practice of "subleasing" or "licensing" a rent-stabilized apartment, in the absence of an actual tenant, has been dubbed an "illusory tenancy”.  In such cases, subtenants have successfully asserted entitlement to Rent Stabilized tenancies on their own behalf.  Perlbinder v. New York City Conciliation and Appeals Bd., 67 N.Y.2d 697 (1986); Yellon v. Reiner-Kaiser Associates, 89 A.D.2d 561 (2d Dep't 1982) (When an illusory tenancy has been found, “‘subtenants’ have been accorded the full rights of tenants under the Rent Stabilization Law and Code[.]”)

So now, let us look at some examples.

In Linden Lefferts LLC v. Cox, 2011 NY Slip Op 21093, 2011 WL 903049 (AT 2nd 3/14/11; LVT Number: #23315, Landlord sued to evict Rent Stabilized tenants for illegal subletting.  Tenants appeared in court and agreed to move out.  A subtenant also appeared and agreed to move out.  Later, another occupant stepped forward and asked the court to vacate the judgment and warrant and let him join in the case.  He claimed illusory tenancy, and said that he had lived in the apartment for five years and that both landlord and prior landlord had accepted rent from him.  He wanted the chance to put in an answer.  The court ruled against the occupant.  He appealed, and the appeals court reopened the case.  The occupant was at least entitled to raise his claim by putting in an answer to landlord's petition.  

In Square Block Associates v. Fernandez, NYLJ, 12/3/10, p. 26, col. 2 (AT 1st) LVT Number: #23083, Landlord sued to evict Rent Stabilized tenant for unauthorized subletting.  Subtenant claimed that tenant was illusory and that he was therefore entitled to a lease in his own name.  The court ruled against subtenant, who appealed and lost.  At trial, landlord proved that subtenant participated with tenant, his former roommate and long-time friend, in a scheme to prevent landlord from finding out that tenant had moved out.  After tenant vacated, subtenant continued to pay rent with money orders made out in tenant's name, and tenant continued to sign renewal leases.  Also, there was no profiteering since tenant collected no rent from subtenant.  At most, tenant may have held on to the lease while hoping that the building might someday convert to cooperative ownership.  There was no illusory tenancy.

In 333 East 49th Partners LP v. Siebert, NYLJ, 8/8/07, p. 29, col. 1 (Civ. Ct. NY) LVT Number: #19820, a factor the court considered when holding for tenant was that, although landlord didn't conspire with tenant in the unauthorized subletting, landlord knew, or should have known through its building employees, that subtenant was living in the apartment for a long time before taking any action.

In 545 Eighth Ave. Assocs. LP v. Shanaman, NYLJ, 6/9/06, p. 35, col. 1 (AT 1st) LVT Number: 19848, the court found that the tenant was illusory where tenant had moved out more than 10 years earlier.

Some Factors Courts Consider When Analyzing An Illusory Tenancy Allegation

(1) Is tenant really gone?  If so, for how long?  If so, is she returning?
(2) Did landlord accept rent directly from the subtenant?  
(3) Did subtenant participate with tenant in a scheme to prevent landlord from finding out that tenant had moved out?  i.e. paying rent with money orders made out in tenant's name, and tenant continuing to sign renewal leases.
(4) Did tenant profiteering on subtenant?
(5) Was there was a connection between landlord and tenant?  Such as relatives.  Did tenant actually pay rent to landlord?  
(6) Did landlord know subtenant was there alone and fail to take action?  For how long?  




Thank you for this question.  Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between us or between you and LandlordsNY.  

Let me know if you need anything else.

Michelle Maratto Itkowitz
Itkowitz PLLC
26 Broadway, 21st Floor
New York, New York 10004
(646) 822-1805
mmaratto@itkowitz.com
http://www.itkowitz.com

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Short Term Leasing (Like Airbnb) Evictions and Issues

On June 28, 2016 Michelle Maratto Itkowitz taught a Lawline Continuing Education program entitled Short Term Leasing Evictionsthe program focuses on residential evictions resulting from tenants engaging in illegal Airbnb and similar rentals.  Learn what is legal and what is not, and what to do about it -- this program is good for landlords OR tenants!  The reviews for this one have been outstanding.  So far it's got 100% rating - "She was great! More courses by her please!"

On August 28, 2016 Michelle answered this Lawline student's question -- 

Question:

Is an individual co-op or condo apt. covered by the multiple dwelling law and what short term leasing provisions apply to co-op or condo apt. owners besides getting board approval?  Also, what are the liability insurance issues that arise and how can they be addressed by people who rent out their unit?

Answer:

Yes!  The Multiple Dwelling Law applies to coops and condos!  And, therefore, so does the prohibition against short-term leasing.

I will give you a few other examples of how the MDL applies to coops and condos.  

The case that established that the landlord had a nondelegable duty to deal with bedbugs in a Multiple Dwelling was in a coop.  Zayas v. Franklin Plaza, 23 Misc.3d 1104(A) (NYC Civ. Ct. NY Cty. 2009).

MDL § 78 requires the “owner” of every multiple dwelling to keep the dwelling in good repair.  Liability for negligence in keeping the roof of a condominium in good repair was imposed on the sponsor in Liberman v. Cayre Synergy, 73rd LLC, 108 A.D.3d 426, (1st Dep’t 2013).  The court concluded the sponsor owed a nondelegable duty to keep the condominium, including its roof, in good repair, citing MDL § 78.  Sponsor breached that duty because the original roof installed did not render the condominium watertight and there was water infiltration into plaintiff’s unit.

Similarly, the requirement in the MDL that a janitor must be provided for any Multiple Dwelling occupied by 13 or more families has been applied to condominium developments.  Hatcher v. Board of Managers of the 420 West 23 Street Condominium, 12 Misc. 3d 78 (App. Term 2006), order aff’d, 39 A.D.3d 436 (1st Dep’t 2007).  In Hatcher, a nonresident superintendent was employed.  In this case, similar to the others, the board of managers was treated as the “owner” for purposes of compliance with statutory provisions.

So…coops and condos located in multiple dwellings (3 or more units) are not getting out of the fact that the prohibition on short-term leasing is codified in the definitions section of the MDL.  MDL § 4(8)(a).

Ok so let’s talk about your insurance liability question.  

As of this writing, there are no reported cases where a tenant sued a landlord because he or she was harmed in a Multiple Dwelling by another tenant’s short-term leasing guest.  Depending on the factual circumstances of such a hypothetical occurrence, however, it is possible that a landlord would be liable and that her insurance would NOT cover the loss.  

In Bello v. Campus Realty LLC, 99 A.D.3d 638 (1st Dept. 2012), a multi-family building’s residents brought a premises security action against building’s owner after they were robbed by intruders.  The appellate court held that genuine issues of material fact existed that precluded summary judgment in the tenants’ premises security action.  The question the trial court needed to contemplate was whether the landlord breached its duty to take minimal security precautions to protect residents from foreseeable criminal acts by failing to remedy an allegedly broken lock on the building’s front door entrance, despite notice of the dangerous condition, and whether the robbery of the residents was foreseeable, given the evidence of prior crimes, including robberies in and around the building.

The appellate court made the same decision in Carmen P. by Maria P. v. PS & S Realty Corp., 259 A.D.2d 386 (1st dept., 1999) when a fourteen-year-old tenant brought negligence action against landlord for breaching his duty to take precautions against foreseeable criminal assaults on tenants after she was raped by an unknown assailant who forced his way into her apartment.  There was evidence that intruders loitered in the hallways, committed robberies, assaults, and drug crimes in the building, and that tenants complained about lack of security. 

I have had landlords report to me that their tenants are complaining repeatedly in writing to them about illegal short-term guests of other tenants loitering in the hallways and having raucous parties.  The question remains open as to whether such a landlord would be liable if a tenant was harmed by a short-term leasing guest.

In NYC v. Lorimer LLC, ECB Appeal No. 1400672, September 18, 2014 (affirmed 11/20/2014 under Appeal No. 1401013), a tenant who rented four apartments in a multiple dwelling converted them to transient use, resulting in violations and fines.  The landlord testified that he had no idea that the tenant had done this and it would have been impossible for him to access these apartments.  The ECB did not find this testimony credible, because increased traffic in the building should have alerted landlord to the problem, and landlord did not show that he either physically or legally attempted to gain access and deal with the problem.  

The writing is on the wall, in my humble opinion.  Have you ever dealt with an insurance company.  I will give you a hint – they like to deny claims.  If you burn your building down because you are engaged in an illegal act, are you covered?  If coop subtenants - or WORSE shareholders - are renting the units illegally on Airbnb and other short-term leasing cites, and there is a loss occasioned by those guests (you don't even burn the building down, guests you never met do!), then I am guessing that neither the shareholder’s nor the board’s insurance would cover the loss.  I am not an insurance lawyer and I do not know.  I wouldn’t want to be rolling those dice.  

Let me know if you need anything else.

Michelle Maratto Itkowitz
mmaratto@itkowitz.com

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Reneging on a Lease Renewal Offer Sent to a Free-Market Tenant – MICHELLE’S MONDAY MANDAMUS

August 22, 2016:  This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".

Hi, Michelle here.  I am the LandlordsNY “Legal Expert” (you can see my profile on the expert’s page).  My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people.  Let me know if this is helpful.  These questions are excellent, keep them coming.

Question:  “Do you have to honor a lease renewal offer already sent to a free-market tenant?  I have several NON-Rent-Stabilized tenants who are apparently so distraught over recent changes to the building’s music room that they are threatening to withhold rent.  I have already sent out several lease renewals to these tenants and now I wish I hadn’t.”

Answer:

An offer to enter into a contract, when not given for a consideration, can be revoked at any time before acceptance.  Evans v. 2168 Broadway Corporation, 281 N.Y. 34 (1939).  

In Globerman v. Grand Central Parkway Gardens, 115 N.Y.S.2d 757 (Sup. Ct. NY Cty. 1952), the court stated that:

“[L]andlords have the absolute right, under the law, to choose their tenants.  They possess this right, not only with respect to original tenancies, but also with respect to any renewals or extensions thereof.  The landlords, being under no legal obligation to renew or to extend the plaintiffs’ leases, did not commit any actionable wrong because they made an offer to renew, conditioned upon the acceptance by the plaintiffs of a demand for an alleged unlawful rental increase.  The rejection of the offer left the parties in the same position as if the offer had never been made.”

So yes, you, you can revoke the offers to renew.  You should do so immediately and in writing – clearly and unequivocally referring to the lease renewals and saying that they are revoked.  

I would NOT refer at all to the music room issue.  You do not need a reason with a free-market tenant.  So why argue about it?  Although I like to follow that comment up by reminding landlords to make sure that their “non-reason” is not discriminatory – not based on the tenant’s inclusion in a protected class.  People disgruntled over an out-of-tune piano, fortunately, are not a protected class.  

Then have your lawyer follow up quickly with thirty day notices of termination pursuant to Real Property Law § 232-a, which is the predicate notice you would need for a summary holdover proceeding.  I assume that you believe that there are new potential tenants out there who will like the new music room and who will pay the rent you hope to get.  



Thank you for this question.  Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between us or between you and LandlordsNY.  

Let me know if you need anything else.

Michelle Maratto Itkowitz
Itkowitz PLLC
mmaratto@itkowitz.com

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Landlord’s Requirement to Paint Apartment – MICHELLE’S MONDAY MANDAMUS

August 15, 2016:  This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".

Hi, Michelle here.  I am the LandlordsNY “Legal Expert” (you can see my profile on the expert’s page).  My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people.  Let me know if this is helpful.  These questions are excellent, keep them coming.

Question:  “I have a tenant demanding I paint his apartment.  The last time it was painted was 10/15/2012.  The paint job was by the tenant and he painted a white apartment green.  He demanded I pay for materials, which I did.  His children have used these walls to show off their skills with crayons, markers, and stamps.  We are in housing court now, for non-payment, and he is using this as an excuse for not paying the rent.  Do I have to paint this place?”

Answer:

At the end of this post, I am going to give you the actual statute on this one, the New York City Housing Maintenance Code § 27-2013 (Painting of public parts and within dwellings).  I think every landlord should read it and know what it says.  Landlords often seem surprised by this statute.  

For those who simply will never read the statute, however, first I give you some major takeaways from the painting law.  Note that while the HMC, in general, applies to all dwellings, certain sections of the painting section of the law apply ONLY to multiple dwellings, which means three or more residential units.  

TAKEAWAYS REGARDING PAINTING REQUIREMENTS in NYC

In a multiple dwelling (three or more units), landlord must paint every three years.

The lease can shorten this requirement, so be careful if you are cutting and pasting from some other lease!  The lease can NOT lengthen the requirement.

Landlord can get out of the three-year-paint-job if ONE month prior to the expiration of the three year cycle the landlord and tenant agree that the painting requirement can be extended.  In that case, the extension can be for up to two years.  This needs to be in a separate agreement, however, not part of a lease.  I assume this provision is there in case tenants do not want the hassles that come along with a paint job.

The landlord of a multiple dwelling is required to keep and maintain records relating to the refinishing of public parts and dwelling units showing when such parts were last painted or papered or covered with acceptable material and who performed the work.  Such records shall be open to inspection by the department, and shall be submitted to the department upon request.  

Now back to your specific question!  

The fact that the tenant did the last paint job and the fact that he painted the place GREEN, has no bearing on the above-referenced law.  You still need to paint the apartment, because it has been more than three years.  

Nevertheless, the lease probably prohibited tenant from doing his own painting and from using the color green.  Your remedy there was to do a notice to cure lease violation – three years ago, or whenever you discovered this.  It would be a hard case to bring now, because you have accepted rent since discovering the problem, thus waiving the violation.  If a landlord accepts its tenant's rent without protest, after learning of lease violations, landlord thereby normally waives its rights to terminate lease on basis of such violations.  Witkoff v. Shopwell, Inc., 112 A.D.2d 295 (2nd dept. 1985).  Even more damning than that – he told you he was going to do it and you paid for the materials!  Therefore, you have no remedy there for the green paint.  Again, unless you attempted to terminate the lease for the damage caused by the crayons, markers, and stamps, at the time you discovered it, without accepting rent, then there is little you can do about it now.  

Understand something – Tenant may have “demanded” you pay for green paint, but you did not have to agree to do so!  You did, however.  I think that was probably a mistake.  But that does not change the law or the tenant’s rights or the landlord’s obligations.  

Yes, failure to paint will get the tenant a rent abatement.  Yes, you have to paint the place.  Please read the below statute carefully, you have to paint all your apartments in a multiple dwelling and keep careful records thereof!  

I always encourage new owners, in particular, to go through each apartment, inspecting, repairing as necessary, removing violations, and painting.  Not only will this eliminate possible reasons for tenants to have rent abatements in the event of a dispute with a tenant, but it gives owner a chance to inspect each unit thoroughly.  In addition to complying with the law and being a good management practice, painting is an opportunity to look for possible grounds for eviction of bad tenants – such as non-primary residence, AirBNB/short-term-leasing violations, hoarding/nuisance, illegal alterations of the apartment, etc.  




HMC § 27-2013 states:

a. In the public parts of a multiple dwelling, and in a tenant-occupied dwelling unit in a one- or two-family dwelling, the owner shall:
(1) Paint or cover the walls and ceilings with wallpaper or other acceptable wall covering; and
(2) Repaint or re-cover the walls and ceilings with wallpaper or other acceptable wall covering whenever necessary in the judgement of the department to keep such surfaces sanitary.

b. In occupied dwelling units in a multiple dwelling, the owner shall:
(1) Paint or cover the walls and ceilings with wallpaper or other acceptable wall covering; and
(2) Repaint or re-cover the walls and ceilings with wallpaper or other acceptable wall covering every three years, and more often when required by contract or other provisions of law.

c. The department may require a tenant of a dwelling unit in a multiple dwelling to repaint or re-cover the interior walls and ceilings of such tenant’s dwelling unit with wallpaper or other acceptable wall covering if such walls and ceilings become unsanitary at any time within three years from the date of the last refinishing by the owner. However, if the tenant can show, to the satisfaction of the department, that the walls and ceilings have become unsanitary through no act or neglect of his or her own or of such tenant’s family or guests, the department may require the owner to repaint or re-cover the same. This subdivision does not relieve the owner from his or her duties under paragraph two of subdivision b of this section.

d. The owner and tenant of any dwelling unit in a multiple dwelling may, by voluntary agreement, provide that the owner need not repaint in such unit as required by paragraph two of subdivision b of this section for such additional period, not to exceed two years, as may be agreed upon.  Such an agreement to extend the time for repainting shall not be valid unless it has been entered into not earlier than one month prior to the expiration of the three-year period, and shall not form part of any agreement of lease.  The department may prescribe the form of such agreements, require them to be filed, and may make such other regulations as may be necessary to avoid abuse, and to further the purposes of this article.  Notwithstanding any agreement, the department may, during the period for which repainting is deferred by agreement order repainting by the owner in any dwelling unit when deemed necessary to keep the walls and ceilings of such unit sanitary.  This subdivision shall not affect the applicability of subdivision c of this section during the three years after any repainting or re-covering.

e. Neither the owner nor a tenant of a dwelling unit shall place wallpaper or wall covering upon a wall or ceiling in the public or tenant-occupied parts of a dwelling unless existing wallpaper or wall covering is first removed and such wall or ceiling is cleaned and repaired. However, if wallpaper or wall covering is in good condition, free from vermin and a coat of acceptable paint or sizing is applied, one additional layer of wallpaper or wall covering may be applied.

f. Nothing contained in this section shall be deemed to require the owner of a dwelling to cover with wallpaper or other acceptable covering any wall or ceiling not previously so covered by such owner.  When a wall or ceiling of a dwelling unit has been decorated with paper, wood paneling, or other material over which paint normally is not applied, the owner shall be relieved of his or her obligation to repaint or recover such wall or ceiling so long as the same remains in a sanitary condition, in the judgment of the department.  When the department requires redecoration of such wall or ceiling, the tenant shall remove any paper, wall covering, wood paneling or other material which such tenant has applied before the owner is required to clean and repair and repaint or re-cover.  However, if the owner or a former tenant has applied paper, wall covering, wood paneling or other material, the owner shall be responsible for its removal before redecoration.

g. The owner of a multiple dwelling shall keep and maintain records relating to the refinishing of public parts and dwelling units showing when such parts were last painted or papered or covered with acceptable material and who performed the work. Such records shall be open to inspection by the department, and shall be submitted to the department upon request.

Thank you for this question.  Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between us or between you and LandlordsNY.  

Let me know if you need anything else.

Michelle Maratto Itkowitz
Itkowitz PLLC
mmaratto@itkowitz.com

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