BY HON. GEORGE M. HEYMANN
Most rent stabilized leases contain a provision that prohibits the tenants from harboring pets in their apartments without the express permission of the landlord.
That being said, this is one of the prohibitions that is most often violated by tenants and often overlooked by the landlord.
However, in those instances where the landlord seeks to enforce the no pet rule, the tenant will generally be served with a notice to cure, requesting that the pet be removed from the premises by a date certain, in order to avoid the commencement of a holdover proceeding which could, if successful, result in the termination of the tenancy.
In NYC, there is a provision of the Administrative Code that creates a “waiver” of the no pet rule if the tenant keeps the pet “open and notoriously” for a period of 90 days or more and the landlord does not commence a proceeding within that time frame upon first acquiring knowledge of the pet’s existence. In the event that the matter ends up in Housing Court, the issues of whether the tenant had the pet “open and notoriously” or kept it secreted away in the apartment, and when the landlord was first apprised of the pet and what, if any actions were taken to have it removed become questions of fact for the Court to resolve at trial.
It should be noted that knowledge by the landlord’s agents, such building employees who enter an apartment to do repairs and see the pet, can be imputed to the landlord.
The law is very specific regarding the commencement of such a holdover proceeding. Commencement means just that: service of a petition and notice of petition within the 90 days of the landlord’s first knowledge of the pet’s existence. Similar to the Watergate hearings in the ‘70s, the whole matter boils down to the single question of what did the landlord know, and when did he know it? The language of the Administrative Code provides no wiggle room or exceptions for the landlord. If not commenced timely, the case must be dismissed. This is so even if the tenant(s) misrepresents the circumstances of having the pet in the apartment (ie: claiming to just be watching it for family or friends away on vacation when, in fact, they actually own the pet, etc.).
The landlord acts at his or her own peril by waiting to commence the action. If, as often happens, they find out that the tenant was deceitful as to why they had the pet and the landlord then acts immediately upon ascertaining the truth, it may be too late. Landlords should follow the adage: “shoot first, ask questions later”. In other words, if the landlord commences a proceeding upon its initial awareness of the pet, it can always withdraw it at a later time, but, at least, he or she will not be caught short for failure to act promptly.
Tenants who are successful in having a pet holdover dismissed may be entitled to collect legal fees, as the prevailing party, if their lease provides for legal fees. However, the appellate courts that have jurisdiction over cases in Queens County have upheld denial of such fees if it can be shown that the tenant(s) acted in bad faith and their conduct directly resulted in the landlord’s delay in commencing the proceeding for which dismissal was mandated.
As a final point, the Pet Waiver provision is not applicable if the pet is creating a nuisance in the building and the landlord commences the proceeding on such grounds, regardless of when the landlord first learns of the pet’s presence.
Hon. George M. Heymann is a retired NYC Housing Court Judge, of Counsel to Finz & Finz, PC, and Director of the Housing Legal Clinic at Woodside on the Move.