A Second Pet Can Violate an Already Waived "No Pets" Clause

Most residential leases contain a clause that provides that the tenant is not permitted to have any pets. The New York City Administrative Code was amended a few years back to provide that a tenant openly and notoriously keeping a pet for more than a few months cannot be evicted for keeping that pet notwithstanding the "no pets clause" because the landlord will be deemed to have to waived the right to enforce the clause for having waited to enforce it.An interesting case was presented in which a tenant had a pet that had been in living in the subject apartment for years and was therefore beyond the reach of a landlord wanting to enforce a "no pets" clause. When that pet died the tenant acquired a new pet. The landlord then did timely enforce the "no pets" clause. The landlord served a notice to cure requiring the tenant to remove the pet upon threat of termination. The tenant did not remove the pet and so the landlord terminated the tenancy and then commenced a summary holdover eviction to evict the tenant for harboring the pet in violation of the "no pets" clause in the lease.After the lawsuit started the tenant defended the summary proceeding by claiming that because the landlord had waived the right to enforce the "no pets" clause in respect of the first pet it had waived the right to enforce the clause in respect of the second pet as well.The Civil Court determined that the "no pet" clause would be applied on a case by case (or pet by pet) basis. When the tenant acquired a second pet the landlord was free to enforce the bargained term for so long as the New York City Administrative Code allowed. The Appellate Term affirmed the Civil Court's decision.Tenants should be aware that acquiring (and then growing attached) to a second pet can put your tenancy in danger if the landlord decides to enforce the clause. Landlords should be aware that because missing its time to enforce the clause once before does not mean that the clause should be ignored in the future.The case discussed above is EQR Hudson Crossing v. Kalouf, 33 Misc.3d 140(A) (1st Dept. App.Term 2011).