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The Effect of Landlord Himself Having His Pet in the Building on the “No Pet” Lease Clause – MICHELLE’S MONDAY MANDAMUS

July 25, 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”.  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:  “If a Landlord doesn't allow pets in the building and he himself moves into the building and decides to get a dog himself then does that mean he must allow the rest of the tenants that privilege?? The apts. are rent stabilized and currently there are no pets in the building.”

Answer:

The answer is – NO!  The fact that you, as the owner, have a dog in the building does not change or negate the “no pet” clause in all your leases.  Contractual rights cannot be changed, diminished or increased by the unilateral acts of either party to the contract.  Park West Village Associates v. Abrams, 127 Misc.2d 372 (Sup. Ct. NY Cty. 1984)

However, let me fill you in on the law with respect to pets in New York City.  In summary, a landlord waives the right to evict a tenant that has violated a pet restriction when the following four elements are met:

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.

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."

Here is the law itself.  N.Y., Code § 27-2009.1 (Rights and responsibilities of owners and tenants in relation to pets) 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.”

And here are some cases on the topic.  19 East 80th Street Associates v. Karman, N.Y.L.J., 4/14/98, p. 25, col. 4 (App. Term, 1st Dep't) ("Landlord waived enforcement of the 'no pet' lease covenant … by not commencing a summary proceeding within three months after it learned that tenant harbored a dog in the subject apartment."); 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 … .").

I hope that this is helpful.  The conclusion is that landlord’s actions with respect to having his or her own dog in the building do not waive the “no pet” clauses in the tenants’ leases.  Landlord’s actions with respect to a tenant’s dog, however, may waive the “no pet” clause for that particular tenant.  



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

Thanks,

Michelle Maratto Itkowitz
Itkowitz PLLC
mmaratto@itkowitz.com

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