Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: When my husband and I retired and moved into our condo several years ago, we noted that one of the rules stated that dogs must be walked away from the residences. Most of our townhouse-type units have front, back and/or side yards. In addition, the units in our very small community are arranged in cul-de-sacs around islands with plants and grass, and there are plants and a lawn around the pool entrance and a small, wooded area in one corner of the property.
So, it appeared to us that dog owners had plenty of convenient places to walk their dogs, in addition to their own lawn areas, such that not allowing dogs on lawns around neighbors’ homes seemed to be a considerate and reasonable arrangement. Having had many bad experiences with dog owners through the years, we were pleased that our new home would allow us to keep our distance.
Then, earlier this year a new owner moved in. He has a dog and is a lawyer. He says that our condo’s governing documents give him the right to walk his dog on any and all common areas — which include the front, back and side yards of all the units, as well as all the driveways and entry walkways. He claims that the community may not have or enforce any rule limiting where owners, guests and their dogs may walk, as that would be contrary to our governing documents.
Yikes! Imagine opening your front door to find your neighbor walking his dog right there at your home’s entrance. Or having supper on your back deck and seeing your neighbor bring his dog to the yard behind your unit and then the dog needs to poop while you’re eating, and you get to watch. Yuk!
I asked this new neighbor/lawyer to please tell me where in our documents this unlimited dog-walking access provision was, and he just said that it was “in plain language” in the documents.
That sounded like a suspicious non-answer to me. Our community documents and rules have been in place for decades, and I assume that everything was cleared by attorneys when the HOA was created. Have Florida condo laws changed? Is this new neighbor/lawyer correct? Signed, G.G.
Palm Beach County HOA’s dog walking rules explained
Dear G.G.,
Well, he’s a lawyer, so he must be right — because lawyers know everything.
Of course, I’m being facetious. But I can’t tell you how many conflicts I have that involve lawyers who are sure they are right about everything and anything, regardless of whether it is within their area of expertise.
It’s true that, generally speaking, unit owners in a condominium have easement rights to use and travel though the common elements. But, of course those rights are subject to restrictions contained in the governing documents, as well as the board’s rulemaking authority.
The vast majority of condominium declarations or bylaws expressly state that the board has the authority to make rules concerning the use of the condominium property. There are countless examples of such rules which would be invalidated if your attorney-friend’s theory was correct. Could you pass a rule preventing the pool from being used at night? Could you prevent owners from entering dangerous areas, like electrical rooms or the roof? Could you keep an owner from sleeping in the lobby? Or from bringing his dog into the pool, for that matter?
This owner’s rights are likely not as broad as he alleges; and unless the declaration were to expressly grant a specific right (in which event the board-made rules could not apply further limits), or unless your board has far more limited rulemaking authority than would by typical, the board would have the conceptual ability to promulgate reasonable rules governing the common elements and other association property (including, by the way, the units themselves).
Reasonable is going to be the key word. Provisions in the declaration are given a broad presumption of validity and are only invalidated in rare circumstances; but rules are judged on a reasonableness standard. Is the association addressing a legitimate, real problem, and is the rule designed to address that specific problem?
Having dog poop strewn around is a real problem that the association likely experiences. Is restricting an owner’s ability to walk their dog in specific areas a rule that is reasonably tailored to solve that problem? My gut says yes, but of course the counter argument would be that simply requiring owners to pick up after their dogs might accomplish the same goal. Of course, that does not solve your legitimate concern regarding enjoying your patio while watching a dog nearby doing its business on the lawn.
Only a judge would be able to say for sure, but I like the association’s odds of surviving a challenge.
Where I see a much closer case are in the associations that mandate all animals be walked entirely off the property —there, I doubt a court would find such restrictions reasonable, although I’m not aware of a specific case that has considered the issue.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
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