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: My 3 ½ pounds teacup dog was viciously attacked by a dog owned by my crazy neighbor’s never-leaving guest. The dog is gigantic and obviously not a trained service dog.
The guest and her dog were standing by the elevator, and the owner wasn’t holding his leash. I was standing on my doorstep with my dog beside me, and her dog charged us, mouth open, and scooped up my dog in his jaws. I managed to wrestle my dog out of his mouth, but he sustained significant injuries, requiring expensive surgery. The neighbor dog then tried to enter my condo to chase after my dog, and I held onto his leash, injuring my wrist. The neighbor just stood there and did absolutely nothing. I reported the incident to animal control, who were themselves afraid of the dog.
I also reported the incident to the legal head of the condominium, and he said he could not do anything because the association approved her dog in writing. I have been keeping my dog indoors out of fear, and the one time I tried to take him outside, carrying him, the neighbor dog was wandering around without a leash! I raced inside and called security and the authorities, but there was again no action other than filing another report.
Is it true the association can’t do anything here? Signed, A.C.
Dear A.C.,
I’m very sorry to hear about what happened to your dog. I disagree with the legal head of your condominium who said that the association could not do anything because they approved the dog in writing. Regardless of whether the dog was approved, or even whether it is an assistance animal or service animal, the association has the right to police actual bad acts by the animal, including the attack on your dog.
There are a variety of provisions in your governing documents that could be relevant, which might include prohibitions on nuisance behavior, express prohibitions on dangerous animals, rules regarding control or leashing of animals, prohibitions on damaging another owner’s property, or even language saying that the board has the right to demand the removal of an animal if, in the board’s opinion, it becomes a danger to the community. Even assistance and service animals must be under the handler’s control at all times and cannot become a nuisance to the community.
I find it very unlikely that the association has no language in its declaration of covenants or rules that would be relevant here.
More likely, the association just doesn’t want to get involved because it considers this a neighbor dispute, and also because pursuing it in court could cost the association tens of thousands of dollars; plus, they could be as scared of your neighbor and her dog as you are. But I think that’s very shortsighted of them, because now that they know they have a dangerous animal on the property, in the event this dog attacks another animal or person, that person (or the animal’s owner) can make a very good argument that the board negligently failed to take action to cure a known risk.
I deal with dog attack cases on a regular basis, and most of my boards choose to take aggressive action when an animal attacks another animal (there are of course rare circumstances where it might not be reasonable to pursue a dog attack, such as when a dog attacks another dog that wanders onto its own property).
Despite this, and if the board won’t budge, the only option you have would be to either sue the association to force them to remove the animal (and possibly the guest), or instead sue the owner and the guest yourself.
I recommend the latter — as an owner you have the right to enforce covenants and rules, and if you’re going to sue anyway, the direct approach is the best way to go. If you win your lawsuit you are entitled to recover costs and reasonable attorney fees. And if you don’t have the financial ability to sue (as so many don’t), you may have to work to replace the board with board members who are willing to enforce your covenants and rules, and to do what is necessary to prevent dangerous conditions on the property.
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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