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Getting a Dog Into a No-Pet Building

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By: Susan Stellin

September 27, 2013

What does it take to get a dog into a no-pet building? The question is becoming a hot topic in New York City. Because depending on whom you ask, the answer is A) a legitimate disability or B) a dubious note from a doctor or therapist.

aMost people know that federal, state and city laws require building owners and landlords to accommodate tenants who have disabilities — for instance, by waiving a no-pet rule for a blind resident’s guide dog. But word apparently is spreading about how broadly these laws define a disability, allowing people with a wide range of physical and mental conditions to seek waivers for their dogs…

That still leaves landlords, co-op boards and their legal representatives a lot of gray area in determining what constitutes a legitimate disability, and whether a dog (or other animal) truly helps alleviate it. No-pet buildings worry that granting too many waivers will encourage other tenants to line up with their own doctors’ notes. And buildings must consider the sentiments of residents who chose a dog-free building because of allergies or a bad experience with an unruly animal.

But denying a request for a disability accommodation can have negative consequences, too. “No one wants to be held liable for discriminatory conduct,” said Adam Leitman Bailey, a lawyer who represents rental buildings, co-ops and condos. “Most boards leave it up to their attorneys to make these decisions.”

Mr. Bailey says he reviews at least one request a month for a waiver of a no-pet rule to allow for a service or emotional-support animal — usually a dog, although other animals, like birds, may qualify. He recommends approving about half of these requests, suggesting a denial if the documentation is thin.

“We require a lot of information,” Mr. Bailey said, “and often they can’t provide it.”

As an example, he shared a letter from a doctor, submitted on behalf of a patient (whose name was redacted) with Type 2 diabetes and unspecified “chronic medical conditions.” The six-sentence letter mentioned the health benefits of walking a dog (“great exercise”) and the patient’s observation that “spending time with his dog had greatly improved his mood,” but the reasons were deemed insufficient to justify a waiver.

A big challenge for building owners, lawyers say, is determining what proof they can ask for in order to establish how a dog helps with a disability, especially when the condition in question is not an obvious physical impairment.

The relevant statutes are the federal Fair Housing Act (which defines a disability as a mental or physical condition that “substantially limits” a major life activity), the New York State Human Rights Law and the New York City Human Rights Law. The city law is generally considered the broadest of the three, covering “physical, medical, mental or psychological” impairments — which opens the door to a wide range of requests.
One woman in a no-dog building who received a waiver illustrates the complexity of some of these cases.

Describing her situation on the condition that her name not be published, she listed a succession of challenges that left her depressed: she lost her job; her father died; her mother had to move into an assisted-living facility; and the fate of her father’s dog was up in the air.

A neighbor recommended a lawyer with a disability-waiver track record. The lawyer referred her to a therapist, who wrote a lengthy letter describing her anxiety and outlining her family history, ultimately recommending that she be allowed an emotional-support animal — her father’s now-ownerless dog. She secured a second letter from her primary-care physician, who based his note on a sample letter she gave him.

“Everything that the two notes said is actually true,” she said, explaining that the dog helps get her out of the house, alleviates her loneliness and eases her depression. Still, she acknowledged that she probably would not have taken on a dog if she hadn’t inherited her father’s pet.

“I couldn’t bring her to a shelter because I couldn’t allow her to be killed,” she said. “I was trying to do the right thing by keeping her.”
She continued seeing the therapist, and estimated that she spent about $3,000 in legal fees in order to get the waiver approved.

Other cases, however, involve blatantly fraudulent attempts to evade the no-dog rule…
Other cases are filed with the New York City Commission on Human Rights, which investigates complaints about housing discrimination, including claims that an owner or landlord refuses to provide a reasonable accommodation for a disabled individual. The commission can levy penalties and award damages.

“If someone comes to us with a service-animal issue,” said Cliff Mulqueen, deputy commissioner and general counselor for the human rights commission, “they’ve stated a claim of discrimination and we have to take the case.”

Mr. Mulqueen says that although housing providers may challenge the medical documentation submitted by the resident, they should be careful about adopting rules about service animals once a dog has been approved.

“If you start requiring extra insurance or you start penalizing people,” he said, “you’re going to risk running into other issues of discrimination. That’s a really tricky road.”

But housing providers do have the right to remove a service dog or an emotional-support animal if it becomes a nuisance — for instance, by barking incessantly or soiling common areas.

Kody Keplinger, who is legally blind, had reservations about getting a service dog before deciding to take the plunge earlier this year. One of her concerns was how her building, which doesn’t allow dogs, would deal with her request; another was whether she could handle the responsibility of owning a pet.

The trainer from the agency that matched her with a German shepherd named Corey helped ease the transition on both fronts, accompanying her when she spoke with her landlord and emphasizing the training that service dogs receive.

“A legitimate concern my landlord did have was whether there would be any peeing in the apartment,” Ms. Keplinger recalled. Describing Corey, she added: “That is something she’s been trained for — she actually goes on command. I take her to a spot and tell her when she should go.”

Although Ms. Keplinger’s landlord didn’t challenge her need for a service dog, people at movie theaters and in other public places have accused her of faking her disability. She worries that dishonest requests for service or support animals will have negative repercussions for people who really need them.

“Frankly,” she said, “I would rather a few people slip through the cracks and cheat the system than have the regulations made harder on people who need service dogs. It is a very complicated issue, and I understand it’s frustrating for landlords and co-ops.

“Unfortunately, there is no perfect solution.”

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS