Staff: Terzah Nasser
Counsel to the Committee
Andrew Sterrer
Legislative Counsel
Sara Marks
Policy Analyst
David Pechefsky
Finance Analyst
THE COUNCIL
REPORT OF THE INFRASTRUCTURE DIVISION
MARCEL VAN OOYEN, DEPUTY CHIEF OF STAFF
COMMITTEE ON HOUSING AND BUILDINGS
Hon. Madeline Provenzano, Chair
June 23, 2004
INT. NO. 189 By: Council Members Katz, Gioia, Martinez, Monserrate, Palma, Nelson, Koppell, Perkins, Gerson, Barron, Brewer, Addabbo, Moskowitz, Jackson, Clarke, Gentile, Lopez, DeBlasio, James, and the Public Advocate (Ms. Gotbaum).
TITLE: In relation to clarifying the rights of pet owners in multiple dwellings.
ADMINISTRATIVE CODE: Amends section 27-2009.1 by amending subdivision b.
BACKGROUND
AND ANALYSIS:
On June 23, 2004 the Committee on Housing and Buildings, chaired by Council Member Madeline Provenzano, will conduct a hearing on Int. No. 189. The bill would amend section 27‑2009.1 of the Administrative Code of the City of New York by clarifying the rights of pet owners in multiple dwellings such that when a “no pet” provision in a tenant’s lease is waived it is waived for the duration of the tenant’s occupancy, and not the life of a particular pet. The Committee expects to hear testimony on this bill from different perspectives, including those who support the bill and those who oppose the bill.
Local
Law 52 and the Three-Month Waiver Provision
Administrative Code §27-2009.1 was enacted by Local Law 52 for the year 1983 (Local Law 52, “the Pet Law,”) and provides that where a tenant in a multiple dwelling harbors or has harbored a household pet or pets “openly and notoriously” for a period of three months or more after taking possession of a dwelling unit, and the owner or his or her agent has knowledge of this fact and fails within such three-month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such pets, then such lease provision shall be deemed waived. There is no explicit provision in the law for the revival or resumption of a no-pet clause once it is waived. However, tenants whose pets cause damage, create a nuisance, or “substantially” interfere with the health, safety or welfare of other occupants are not protected under the current law or Int. No. 189. Incidentally, the current law also expressly states that its provisions do not apply to the New York City Housing Authority.
Local Law 52 also contains a codified legislative declaration which specifically states that because pets “are kept for reasons of safety and companionship … it is necessary to protect pet owners from retaliatory eviction” and that “this section [27-2009.1] is necessary to prevent potential hardship and dislocation of tenants within the city.”
Supporters of Int. No. 189 believe the bill is necessary in order to clarify the rights of pet owners due to inconsistent court interpretations of Local Law 52 and as a consequence, residents of Manhattan and the Bronx can be treated differently under the law than the residents of other boroughs. The issue is whether a “no pet” clause can be revived after it is waived when the pet that was harbored dies or otherwise leave the apartment. In 1996, the Appellate Term for the First Department ruled in Park Holding Company v. Emicke,[1] that a landlord could enforce a “no-pets clause” contained in a lease against a tenant’s new pet. In this case, the tenants had kept a dog in their apartment since 1987. After that dog died in 1994, the tenants acquired another dog and the landlord objected to the presence of the new dog within two days of its introduction to the premises. The landlord proceeded to serve a notice to cure, notice of termination and then commenced a holdover proceeding within three months after learning of the alleged breach of the lease. The court held that the “no-pet clause” was only waived with respect to the original dog, and that the landlord had a new three-month period to enforce the no-pet clause against the second dog.[2] Thus, because the First Department only covers Manhattan and the Bronx, the rights of tenants who live there are not the same as the rights of tenants who live in Queens, Brooklyn and Staten Island.
While only an appellate court from the First Department has ruled that a “no pet” clause can be revived, lower courts have consistently held that such a clause could not be enforced against a tenant’s new pet. For example, in Brown v. Johnson,[3] under similar facts to Park Holding Company v. Emicke, the court held that “it appears that the only reasonable reading of the statute is that failure to bring a proceeding constitutes a waiver of the clause in the future. The section[4] refers to a tenant who ‘harbors or has harbored a household pet or pets.’ Inclusion of the past tense can only be meant to refer to situations such as the one at bar.”[5]
Public Policy Concerns
Pets are believed by some to provide a great source of companionship.[6] Numerous studies show there are both real and/or perceived beneficial health effects of pets upon people.[7] According to an early statement by Virginia Chipurnoi, president of the Humane Society of New York, the bill “will likely save the lives of many animals, because people threatened with eviction for having a pet frequently turn their pets over to the already overburdened animal shelters.”[8] Furthermore, the Humane Society notes that approximately 40,000 cats and dogs are put to sleep every year in New York City animal shelters because they have nowhere to live.[9]
Opponents of this bill, or a bill of this nature, include both tenants and landlords. Some tenants are highly allergic to pets because of their dander and shedding. Some people are not fond of living near animals because they might create unnecessary noise, dirt and smells. Some people have concerns about safety around certain animals, such as dogs with aggressive tendencies. Some landlords are concerned about related liability issues and claim the bill would impinge on their rights to use and dictate the use of their property as they see fit. Landlords point to property damage as a major reason for opposing the bill, and the difficulty involved with evicting any tenant, such as time and legal costs.
Other opponents believe this bill threatens the rights of cooperative boards and condominium boards of managers to set internal policies. In these multiple dwellings, pet policies are generally either set by board members who are owners in the cooperative or condominium or by open vote of all eligible owners. These policies also effect tenants who rent or sublease apartments within cooperatives or condominiums. Finally, it has been raised as an issue of concern that some people are not able to appropriately care for animals, even though they may want to.