Puppies and pornography make case law.

There are two very recent interesting cases on pets, Park Holding Company v. Emicke, and on pornography, Sorbaro Co. v. Capital Video Corp., which have made law of use to landlords.

The Park Holding case involves the application of the New York City Pet Law with a landlord no-pet clause. In this case, the tenants in a rent stabilized apartment executed a lease in 1987 which had a no-pet clause providing that the harboring of pets at any time during the tenancy was prohibited, and that any violation would constitute default and grounds for cancellation of the lease.

The tenants began keeping a dog on the premises in 1987 and the landlord waived that lease violation by failing to object or bring an eviction proceeding. When the dog died in 1994, the tenants obtained a new puppy. The landlord immediately objected and commenced eviction proceedings.

The tenants moved to dismiss on the grounds that the eviction was retaliatory in violation of the Pet Law at New York City Administrative Code [section] 27-2009.I(a).

The question presented was whether the Pet Law was intended to cover any subsequent pet or only the specific pet for which the landlord waived its rights. The court held that a one-time waiver of the lease does not preclude enforcement of a landlord's no-pet contract clause for each successive unauthorized pet.

The court was also impressed that the landlord's lease contained a standard provision to the effect that the landlord's failure on previous occasions to take any action for violation of the lease shall not preclude the landlord from taking action for any subsequent act of the tenant. Lastly, the court noted that the statutorily imposed waiver under the Pet Law "is more properly limited to existing pets which are part of a household... [and] ...is not reasonably extended to future pets which are not yet in the premises."

Interestingly, would the result have been different for puppies born to the tenant's existing dog?

In the pornography case, Sorbaro v. Capital Video, the landlord sought to rescind a new commercial lease on the grounds of fraud in the inducement by the tenant.

In this case, the tenant was a Rhode Island corporation operating video and pornographic material stores in four New England states and New York. Only a small part of the tenant's business consisted of the sales and periodicals and videos intended for the general public. The bulk of his business consisted of the sale of videos "that could be described as variously as X-rated, adult or pornographic, the sale of sexual aids and paraphernalia, the sale of X-rated, adult or pornographic magazines, and the operation of video booths showing X-rated, adult or pornographic videos."

The tenant first contacted a broker from CB Commercial Real Estate to lease the subject property located at South Road in Poughkeepsie, NY. The tenant never stated that pornographic materials would be sold in the leased space. Instead, the tenant stated to the broker that his business was like a nearby video chain store which "catered to the children's market." The tenant also lied about not owning stores in Troy and Poughkeepsie, NY, both of which sold X-rated videos and magazines and had X-rated video booths. It was conceded that the landlord made no independent investigation of the tenants businesses other than verbal questions through the broker.

The tenant thereafter signed a lease permitting the defendant to use the premises for "retail purposes." During the tenant build-out work, the landlord discovered the tenant's true intentions with the store. Immediately thereafter and before the tenant build-out work was completed, the landlord changed the locks and wired the front door of the store shut.

The question in the court's mind was whether it is appropriate to permit recision of a lease agreement where the subject fraud is about sexually explicit material which enjoys free speech protection under the Federal and New York Constitutions. The court held that the landlord had an absolute right to make such choices and accordingly the lease agreement was rescinded.

Significantly, the court stated as follows: "There is no discernable public interest which would require the courts to foist on a landlord a pornographic use of his or her private property by virtue of the silence of the prospective tenant. Prospective landlords, therefore, should have the right to make an informed decision regarding such a use of his or her property, whether that decision is motivated by personal values, societal values or economics. Clearly, this requirement of disclosure may have application to other objectionable, albeit legal, uses between a landlord and tenant. The sale of Nazi memorabilia, gun stores and unorthodox houses of worship are some examples of uses which could reasonably be expected to violate the personal or societal values of a property owner and impose an equitable duty on a prospective tenant of complete and forthright disclosure."

The question comes to mind: Would the court have upheld the owner's personal likes if the tenant had told the owner he was going to sell women's shoes and it mined out that he really intended to sell men's shoes, which the owner found objectionable? Probably not, but on the other hand, the sale of men's shoes would not have downgraded the property.

(Peter Goetz is a founding member of the law firm of Goetz, Fitzpatrick & Flynn. Mr. Goetz and the firm devote a substantial portion of their practice to representing the real estate industry, including developers, landlords and builders in connection with property acquisition, leasing, construction and related matters.)