Red Flags For Cooperative Boards
Kerry Lee Morgan, Esq., Pentiuk, Couvreur & Kobiljak

Last summer my family visited the Atlantic Ocean in North Carolina. When we arrived on the beach however, we noticed that red flags were flying. The red flags warned us that there were rip tides and that swimming was out of the question.  We had to wait a few days to get in the water, but it was safe when the red flags came down.

                Are there red flags flying at your cooperative, but you can’t see them?

                Perhaps the biggest red flag flying at Cooperatives these days involves member requests about pets.  Perhaps you’ve had a member who has a pet dog or cat but your cooperative has a no pet policy. What do you do? Evict?  Write up? Send a warning letter?  Humm, did you see the red flag?  The red flag here says not all dogs and cats are pets. That is no misprint.  Some dogs and cats are what the law calls “companion animals” or “emotional support animals” and some dogs are “service animals.”  If your member has an animal or is going to get an animal and it’s one of these three kinds of animals, then it’s not a pet. Since it’s not a pet, it is not subject to Cooperative’s “No pet” policy.

                In fact, the law requires that Cooperatives allow that member to have that animal provided the member’s physician certifies that such an animal is required to help alleviate a mental or physical condition or disability from which the member suffers. Boards can’t judge whether the member actually suffers from this or that condition. They have to take the doctors word for it. Once a member provides you a doctor’s note and the member requests an accommodation to keep the animal, the Board should consider that a red flag flying in the wind.  What to do?  At that point, the Board should be talking to its attorney.  It should not be trying to evict or write up its member for violation of the occupancy agreement.  Swimming in this rip tide is fatal. 

                Of course, this doesn’t mean the animal can run wild, bark all night, or jump up on other members.  Boards should adopt reasonable rules and regulations that govern all companion and emotional support animals in order to provide a quiet and safe environment for everyone else. Your attorney can help you draft such policies that are enforceable. But such a policy can’t require the owner to pay a fee for the privilege of owning the animal.

                Boards which ignore this red flag will end up wading into the riptide of governmental investigators. That will cost you more time and money than you can afford, and in the end the member will be able to possess the animal, yet subject to your rules and regulations governing the animal’s care and conduct.

                Remember, Boards cannot keep companion or emotional support animals out of the Cooperative, but they can adopt reasonable rules and regulations governing the animal’s conduct.

                What other red flags are flying which Cooperatives fail recognize? Our society has gradually reduced the places smokers can smoke for the last 40 years.  It’s a war against smokers waged by government at all levels.  Now the war has come to cooperatives with non-smokers having the upper hand.  Perhaps you are a smoker?  Perhaps you are against smoking?  Do you see the red flag flying?  The Cooperatives policy can’t be based on your own personal views on smoking.  Stay out of that rip-tide!
The smoking battleground is now in your cooperative. If your cooperative permits smoking by members in their unit, then it’s only a matter of time before non-smokers in the same building as the smoker complain about secondhand smoke in their units.  This is another red flag. Do you see it? Don’t ignore it.  Your cooperative’s bylaws or occupancy agreement or perhaps rules promise that each member is entitled to the quiet peace and enjoyment of their own unit.  Your documents also prohibit creating a nuisance.  Does the smoking member’s secondhand smoke disturb the quiet peace and enjoyment of non-smoking members? Does it create a nuisance?  You have a complaint about second hand smoke in hand.  What are you going to do about it?

The cooperative may certainly ban smoking in common areas such as hallways or the clubhouse or pool area for instance. But can it ban smoking by a member in their own unit? The answer seems to be that it can.  In fact, the federal government is moving towards actually requiring complete smoking bans in public housing. Keep your eyes open for these developments. 

                Until then, if your cooperative permits smoking and you receive complaints about secondhand smoke, the Board has a duty to take action to prevent secondhand smoke from entering the unit of the non-smoking member. This area is in a state of development so be sure to consult your attorney for options as each case must be considered on its own facts.  Whatever you do, don’t ignore the red flag. If you do, then state and federal investigative agencies will be on your doorstep and you’ll have more problems to deal with than just smoke in your eyes.

                If you want to enjoy this summer, look for the red flags and avoid the rip tide of governmental investigators.  Your cooperative will have a better quality of life if you do.

Mr. Morgan is an attorney practicing law with the Pentiuk law firm.   Much of Mr. Morgan’s practice focuses on civil rights law, employment and labor law, and civil litigation.  He is a former attorney for the U.S. Commission on Civil Rights.