Cooperatives & Condominiums

House Rule Prohibiting Pets Held Invalid

Board of Managers of Village View Condominium v. Froman

NYLJ 11/9/10, p. 30, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In an action by a condominium board for a judgment declaring the unit owner was in violation of the declaration, and for an injunction against maintenance of a dog on the premises, unit owner appealed from Supreme Court's grant of summary judgment to the condominium board. The Appellate Division reversed and declared the condominium house rule prohibiting pets invalid.

When unit owner purchased her condominium unit in 2000, the condominium bylaws included no restriction on pet ownership, and provided explicitly that unit owners and their pets shall not disturb other unit owners. Those bylaws had never been amended. In 2007, after unit owner's prior dog died, she brought another dog, weighing less than four pounds, into the unit. She transported the dog out of the unit in a shoulder bag, and the condominium board conceded that no one outside the unit heard the dog bark. Nevertheless, the board demanded that she remove the dog, relying on House Rule #1, a rule promulgated by the board stating that “no pets are allowed in the building for any reason.” Unit owner failed to remove the dog, and the board brought this action, seeking declaratory and injunctive relief. Supreme Court granted summary judgment to the board, and unit owner appealed.

In reversing, the Appellate Division started by noting that under the Condominium Act (Real Property Law, art. 9B), administration of the condominium's affairs are governed principally by the condominium's bylaws. The court noted that the statute requires the bylaws to set forth such restrictions respecting use of the units “as are designed to prevent unreasonable interference with the use of their respective units.” RPL sec. 339-v[1][I]. Moreover, the court pointed to the bylaws of this condominium, which provided for amendment of the bylaws by a vote of 80% of the unit owners at a duly noticed meeting. The court then rejected the board's position that it could amend the bylaws to prohibit all pets, and closed by emphasizing that in any event, the board had not tried to amend the bylaws, but instead had promulgated a house rule. The court held that the board had no power to ban pets by house rule, and therefore declared House Rule #1 invalid.

COMMENT

Typically, New York courts have held that condominium boards cannot enact house rules that conflict with the condominium's bylaws. In Yusin v. Saddle Lakes Home Owners Ass'n, Inc., 73 A.D.3d 1168 (2010), the condominium bylaws allowed homeowners to walk their pets in common areas. When the condominium board passed a house rule that prohibited homeowners from walking their pets in those areas, the court held the rule invalid because it prohibited an action expressly allowed under the bylaws. The board could accomplish its objective only by amending the bylaws.

In New York, bylaws ' unlike house rules ' cannot be amended by the condominium board at will. Real Prop. Law ' 339-v(1)(j) requires the board to get approval from at least 66 2/3% of homeowners in order to amend its bylaws. Moreover, even the bylaws cannot overcome the anti-discrimination provisions of Executive Law section 296, which may require a condominium to make accommodations for disabled unit owners whose pets are deemed medical necessary. Thus, in Board Managers of Lido Beach Towers Condominium v. Gamiel, 4 Misc.3d 1022(A), the court found that questions of fact remained as to whether the condominium board had discriminated against a disabled homeowner when it changed its pet policy to require pets to be carried in common areas, and when the board refused the homeowner's request for another pet after her medically necessary pet died.

Unlike condominium boards, the boards of cooperative corporations can generally amend co-op bylaws without seeking shareholder approval, unless the articles of incorporation provide otherwise (see Bus. Corp. Law ' 601, 708.

Although a co-op corporation is free to adopt a no-pet policy, New York City's Pet Law (Administrative Code sec. 27-2009.1), provides that a landlord waives its right to enforce a no-pet provision if the landlord fails to take action against a tenant who openly and notoriously harbors a pet for three months. In 980 Fifth Avenue Corp. v. Smith, 295 A.D.2d 133 , the court applied the Pet Law to a cooperative corporation, holding that the co-op had waived its rights against a tenant who had openly and notoriously harbored a pet with the board's knowledge for eight months. The First and Second Department remain split as to whether the Pet Law applies to condominiums. In Board of Managers v. Lamontanero, 152 Misc.2d 874 (1991) aff'd 206 A.D.2d 340 (1994), the Second Department held that the Pet Law applied to condominiums. However, in The Board of Managers of Parkchester North Condominium, 234 A.D.2d (1996), the First Department held that the Pet Law does not apply to condominiums.

House Rule Prohibiting Pets Held Invalid

Board of Managers of Village View Condominium v. Froman

NYLJ 11/9/10, p. 30, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In an action by a condominium board for a judgment declaring the unit owner was in violation of the declaration, and for an injunction against maintenance of a dog on the premises, unit owner appealed from Supreme Court's grant of summary judgment to the condominium board. The Appellate Division reversed and declared the condominium house rule prohibiting pets invalid.

When unit owner purchased her condominium unit in 2000, the condominium bylaws included no restriction on pet ownership, and provided explicitly that unit owners and their pets shall not disturb other unit owners. Those bylaws had never been amended. In 2007, after unit owner's prior dog died, she brought another dog, weighing less than four pounds, into the unit. She transported the dog out of the unit in a shoulder bag, and the condominium board conceded that no one outside the unit heard the dog bark. Nevertheless, the board demanded that she remove the dog, relying on House Rule #1, a rule promulgated by the board stating that “no pets are allowed in the building for any reason.” Unit owner failed to remove the dog, and the board brought this action, seeking declaratory and injunctive relief. Supreme Court granted summary judgment to the board, and unit owner appealed.

In reversing, the Appellate Division started by noting that under the Condominium Act (Real Property Law, art. 9B), administration of the condominium's affairs are governed principally by the condominium's bylaws. The court noted that the statute requires the bylaws to set forth such restrictions respecting use of the units “as are designed to prevent unreasonable interference with the use of their respective units.” RPL sec. 339-v[1][I]. Moreover, the court pointed to the bylaws of this condominium, which provided for amendment of the bylaws by a vote of 80% of the unit owners at a duly noticed meeting. The court then rejected the board's position that it could amend the bylaws to prohibit all pets, and closed by emphasizing that in any event, the board had not tried to amend the bylaws, but instead had promulgated a house rule. The court held that the board had no power to ban pets by house rule, and therefore declared House Rule #1 invalid.

COMMENT

Typically, New York courts have held that condominium boards cannot enact house rules that conflict with the condominium's bylaws. In Yusin v. Saddle Lakes Home Owners Ass'n, Inc., 73 A.D.3d 1168 (2010), the condominium bylaws allowed homeowners to walk their pets in common areas. When the condominium board passed a house rule that prohibited homeowners from walking their pets in those areas, the court held the rule invalid because it prohibited an action expressly allowed under the bylaws. The board could accomplish its objective only by amending the bylaws.

In New York, bylaws ' unlike house rules ' cannot be amended by the condominium board at will. Real Prop. Law ' 339-v(1)(j) requires the board to get approval from at least 66 2/3% of homeowners in order to amend its bylaws. Moreover, even the bylaws cannot overcome the anti-discrimination provisions of Executive Law section 296, which may require a condominium to make accommodations for disabled unit owners whose pets are deemed medical necessary. Thus, in Board Managers of Lido Beach Towers Condominium v. Gamiel, 4 Misc.3d 1022(A), the court found that questions of fact remained as to whether the condominium board had discriminated against a disabled homeowner when it changed its pet policy to require pets to be carried in common areas, and when the board refused the homeowner's request for another pet after her medically necessary pet died.

Unlike condominium boards, the boards of cooperative corporations can generally amend co-op bylaws without seeking shareholder approval, unless the articles of incorporation provide otherwise (see Bus. Corp. Law ' 601, 708.

Although a co-op corporation is free to adopt a no-pet policy, New York City's Pet Law (Administrative Code sec. 27-2009.1), provides that a landlord waives its right to enforce a no-pet provision if the landlord fails to take action against a tenant who openly and notoriously harbors a pet for three months. In 980 Fifth Avenue Corp. v. Smith, 295 A.D.2d 133 , the court applied the Pet Law to a cooperative corporation, holding that the co-op had waived its rights against a tenant who had openly and notoriously harbored a pet with the board's knowledge for eight months. The First and Second Department remain split as to whether the Pet Law applies to condominiums. In Board of Managers v. Lamontanero, 152 Misc.2d 874 (1991) aff'd 206 A.D.2d 340 (1994), the Second Department held that the Pet Law applied to condominiums. However, in The Board of Managers of Parkchester North Condominium, 234 A.D.2d (1996), the First Department held that the Pet Law does not apply to condominiums.