Request for Consultation
Posted 10/24/08

Is It The Pet .....
Or The Pet Owner... That Is The Real Problem?!*!

Many a volunteer director has had one problem or another bought to his or her doorstep relating to pets. Often, the question really is: "Is it the pet that is the problem? or ... Is it the person that owns the pet that is the problem?" It is true that many pets resemble their owners, but it could be the reverse, i.e., that the pet owner has taken on the personality of the pet. If you have seen a threatening pit bull or rottweiler with a mean owner, you will know what I say can be true.

In many cases, you are likely to find that it is the pet owner that is the real problem and not the pet itself. If you have to deal with a barking or threatening dog, or even an over-friendly but also overbearing and oversized dog in the complex, and it is running toward you with gusto, in a gesture that is difficult to sort out until face to face with the dog, you will think twice about whether dogs should be off-leash. Pet owners do dumb things. They leave their pets outside on balconies and in patios, even on the hottest of days. Or, alternatively, they coup their pets up inside the house all day and night long, sometimes even for long weekends. Some let their pet run loose in the common area (not really caring if everyone else in the development doesn't love their pet the way they do). Sometimes they use their pet as a threat. Sometimes, they are in denial about the problems. Let's face it, we are talking about dogs here. Few cats have been seen as a threat of the same magnitude with regard to personal safety or peace and quiet.

There is no intent here to pick on dogs. Cats can cause problems too. Left to roam they can pee in the bushes and poop in the flower pots or in the sand piles where the toddlers play. Like dogs, they can dig up plants or leave doodoo and yellow spots in the grass. They can leave tracks across car windows (this makes some people really mad!) and get into cat fights in the middle of the day or night. They can attract feral cats and also other rodents or nighttime pests like raccoons or opossums who like to come out and eat cat food left outside by well-meaning cat lovers.

And then there are the birds. Have you ever lived next to a condominium housing cockatiels or parrots that like to whistle or talk at 5 am? Music to the neighbor's ears? Not likely!

There are a number of questions the board might ask when faced with a pet problem. These are some of the most common but specific situations that seem to arise with regard to pet issues:

It May Be the Type of Pet: Many people are afraid of snakes and reptile of any kind or variety. The very idea that one is living next door can cause the weak of heart to sweat. Snakes that get loose scare the heck out of people. Especially those pythons that love to wrap around you and squeeze the breath right out of you (which some people see simply as "cuddly.") Potbelly pigs, the rage as we all saw in the last decade, grow to be big fat hairy ugly pigs. One person's idea of "cute" may well be another person's idea of "scary."

Maybe It's the Person: Sometimes it's a board member who thinks they are the only person in the development that should own a house full of pets. Other times it might be the threatening bully who owns the pit bull and they walk the streets together, offering a menacing presence, a "compensation" issue in some cases, if you get my gist. And sometimes it's a 90 lb. female who is being dragged around by the 150 lb. rottweiler. Sometimes the problem is the person who doesn't hear their pet barking in the middle of the night (are they deaf, in denial, or simply discourteous?). Sometimes the person thinks he or she is doing a favor to the animals when they over feed the ducks in the pond and end up with a bunch of rogue ducks (yes, that is a real term) that don't want to leave. Sometimes the problem is the squirrel lover who puts out nuts and seeds for the squirrels, and doesn't realize the squirrel droppings draw rats, or the peanuts draw raccoons. Sometimes it's the sugary substance in the hummingbird feeder that draws the attention of bears. Sometimes it is the little old lady who purposely leaves food out for the baby bears, forgetting that attracts the mamas and papas too. Sometimes it's someone who feeds all the neighborhood cats, attracting feral cats or vermin.

Sometimes the problem is a tenant instead of an owner who has less respect for property or neighbors. There was a California study commissioned by the Department of Real Estate back in 1985 that includes findings indicating that homeowner associations with a high percentage of renters tend to have more problems than those with a high percentage of residents.

Sometimes, owners think that renters don't belong in the neighborhood and so they are ostracized. Sometimes other residents treat the tenants badly and so they become a bully. The remedies against a tenant are different than those of an owner. In fact, the association will generally want to proceed and deal with the owner, even when the animal or pet belongs to the tenant.

Here are some specific scenarios and commentary on how some of these problems were resolved.

Board Member Raises Birds, Converts Condo into Aviary: Some love the sweet song of a room full of song birds and others would simply find that to be a nuisance. In a particular situation, a board member was raising birds in her units, and the noise was driving the neighbor crazy. Of course, this had to be one of those situations where the board treated everyone else in the association as peons and otherwise attempted to uphold a ban on pets. Birds and fish were generally allowed, pursuant the regulatory documents, but not in the numbers or to the noise level kept by the board president. One might assume or at least suspect that living conditions and the smell were probably as bad as the noise.

So what should the board do, appease the President (whom no one wants to quit their "job")? Or side with the neighbor who has been a long time complainer about many things?

One of the worst things a board can do is set a bad example or look the other way when a board member's breaks the rules. This will become apparent when trying to enforce similar situations against the other owners. In this case, the board member should get rid of all but one or two of the birds (at the most), and/or contain the noise another way. The regulatory documents more than likely do not allow numerous pets that cause a disturbance of any kind.

A board that ends up in these circumstances is asking for trouble. For years, the number one highest and by far most popular source of D&O (Directors and Officers) liability insurance claims, according to Chubb-a national company was inconsistent treatment of owners (meaning favoritism gained through treating one individual or group over and above the interests of another individual and/or group.

A board in this scenario will have considerable difficulty enforcing the rules with regard to any nuisance (or any other subject for that matter), when the members can point back to the board member situation.

Here is another instance. The board of directors was adamant about limiting the number of pets in the course of a document restatement project. Pets had become a problem. Of course, the board president loved cats. She had two cats of her own, one cat she was keeping for a friend, and one cat that came to her door every day looking for food, which she could not bear to send away hungry. The board wanted to limit the number of pets to two, and the president adamantly took the position that she had only two cats, while in effect she was actually "harboring" four cats. Being an attorney helping with a project like this, I do not buy it! Everyone can make excuses, but people have to get real. Board members who violate the rules complicate the enforcement process in their associations.

afraid of dogThreatening Dogs: As stated above, many boards are faced with specific situations involving problems related to threatening dogs. Most regulatory documents have some kind of provisions against nuisances, and allow some kinds of remedies for dealing with problem pets. Some practitioners looking for solutions to the dilemma relating to threatening dogs suggest that the nature of the risk exposure warrants prohibitions on various breeds of dogs from the development. There are 11 breeds of dogs that have been identified by some insurance companies to be aggressive breeds, and deemed uninsurable. Is it okay to exclude these dogs? Perhaps such a rule could pass scrutiny by a hearing officer, if there is a CC&R provision or rule on the subject that was legally imposed, and owners had notice of it.

The mere presence of aggressive dogs (especially when owned by a person in denial) seems to breed problems that often land in the association's lap. Boards have to be careful when dealing with threatening dog situations, especially in a densely populated condominium project, where the association is generally expected to exert more control over conduct. In one particularly difficult case, the board received some complaints about an aggressive dog. The association notified the owner, held a hearing, and pointedly required the owner to keep the dog inside. The association threatened fines, etc., and the owner complied for awhile, and then started chaining the dog on his stoop. The Board did not address this; the board members had other challenges on their plate. However, one day, the neighbor girl wandered over into the yard and tried to take the pig's ear away from the dog that the dog was chewing, and the little girl was attacked. The Association was sued.

In another situation, two daschunds were allowed off leash by the owner in the association courtyard on more than one occasion. Residents complained. There were restrictions requiring dogs to be kept on a short leash, but the owner of the dogs claimed the little dogs could not hurt anyone. The board did nothing about it as the board members had other more pressing problems to deal with. In a very bizarre incident on one such occasion, another resident was out walking her much larger dog on a leash. She was yanked off of her feet and dragged across the sidewalk and had several stitches in her face, and she sued the association.

In yet another situation, an association that had adopted weight limits was asked to ban a large dog that belonged to the girlfriend of the past president of the association. This dog exceeded the weight and size limits, barked incessantly, and presented a general nuisance. This former board president claimed that since the girlfriend only visited him, technically, that the dog did not live in the complex with him, and therefore was not considered a resident dog and so the board could not order him to get rid of it. The Association had a very difficult time with this situation. The two neighbors, who were Highway Patrol Officers (husband and wife, one of which was on the Board) were accosted on several different mornings when left their home to get in their car and when dog came bounding out of the house next door, right through the hole in the screen door, barking and growling aggressively. The woman who owned the dog would struggle to drag it back inside, but on this day, she did not come out soon enough and one of the HP officers shot the dog. The association got sued.

afraid of dogCan you see where this is going? Dog problems can lead to big problems for an association. Lawsuits are more predictable and somewhat indicative of what happens when people ignore the rules and boards are ineffective or perceived to be too slow to act, or when the Board fails to take any action to alleviate a real or perceived problem before something bad occurs.

Do? Barking dogs can be very disruptive and a nuisance. Owners with barking dogs should be willing to take steps to quiet the dogs. For the dog owner's use, there are options like muzzles, and other devices. Sometimes it is just a matter of putting the dog in the house, or letting the dog out, to stop the problem. The problem as it often arises, though, is that the dogs bark when the owners are not home. Thus, the owners do not have to listen to the dogs. Sometimes they don't believe cute little fluffy was barking all day.

For desperate "victims" of barking dogs, there are devices that can help in some cases. The claim of such devices is that when a dog within a certain range starts barking, you can emit, electronically, a piercing noise that will quiet the dog. Keeping a log of the dates and times of a barking dog could add some credibility to a complaint and information to the dog owner about when the problem tends to occur. Sometimes it will help in finding a resolution. If not, a person could conceivably use such a log and/or a taped sample of what they have to listen to in small claims court on their own, without the assistance of an attorney. Likewise, a person can hire an attorney to write letters and make other threats, based on a claim of nuisance. If a neighbor has to resort to these measures to try and get some relief, it is conceivable that a judge or hearing officer will offer some help.

Pets can bring peace and pleasure to the pet owner ... and when they are around, there must be some reasonable limits

Contrast these two positions, both of which were sent to me from website visitors: I was at the pool the other day and one of the people at the pool had a dog with him and was throwing a ball in the pool - for the dog to fetch! Yuck. I did not want to swim in the same pool.

With this one:

What is the rule of law with regards to dogs in the pool area ...I think I should be able to take my dog with me to the pool. It seems cruel not to allow a dog to enjoy the pool area and I will say that the kids down there are a lot louder then my dog, or any other dog in the complex for that matter.<p> While it is true that kids may make more noise than pets, and it is true that dogs can be great companions, still, is it proper to take a dog into a community swimming pool? That's a "no-brainer". How many dogs do you see at the public pools legally? The local health departments and state rules more likely than not prohibit allowing animals from swimming in the same pools as the public, and I expect there is a big fine at stake for violations by the pet owner's. I would hope that most homeowner associations have similar rules, although I have heard an owner or two brag that they live in a "dog-friendly" place that lets the dogs swim in the pool. I should say here that I am a dog lover, but I do not let dogs swim in the same pool that my grandkids swim in!)

Now the Burning Question - Children or dogs, Which Are Worse?

Someone else might say that they would not let their dog swim in a pool where young children are allowed to swim. Yes, children can be a pain too and a dog owner may be justified in saying that children are more of a nuisance than a dog. And they are probably right - but children are different. They are a protected class in the eyes of the law, and they are exactly what swimming pools, parks and play yards are all about.

If your HOA wants a dog park, and there is space for it, it may work out for the owners. But if not, I think it best not to expect that the Association will allow dogs and other pets poolside, in the clubhouse, or roaming the green belts or common area, unless of course - they are with a "master" who needs their service.

And they are probably right - but children are different. They are a protected class in the eyes of the law, and they are exactly what swimming pools, parks and play yards are all about.

If your HOA wants a dog park, and there is space for it, it may work out for the owners. But if not, I think it best not to expect that the Association will allow dogs and other pets poolside, in the clubhouse, or roaming the green belts or common area, unless of course - they are with a "master" who needs their service.

This article is republished here but originally appeared as a blog on Beth's Blog. Check out the link to the blogs and find out more about many, many subjects.

copyright 2008, Beth Grimm, all rights reserved

By Beth A. Grimm, Attorney. A "service oriented" attorney and member of ECHO and CAI and various other industry organizations in California and nationally, host of the website www.californiacondoguru.com; two Blogs: California Condominium & HOA Law Blog, and Condolawguru.com Blog, and author of many helpful community association publications which can be found in the webstore on her site.