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Roger
Roger, Lawyer
Category: Real Estate Law
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We live in a 38 hpme association similar to a condo assoc &

Customer Question

We live in a 38 hpme association similar to a condo assoc & it has a board, by-laws etc. The dog bylaw reads "(1) dog is permitted per house. This bylaw was enacted in 1968 to control the # XXXXX dogs in the area; the cap # XXXXX 38. People had 3-4 dogs back then and there was a significant problem. We have one dog and 2 1/2 yrs ago fostered a rescue dog with the intention of finding it a new home. Our closest & very kind neighbor adopted the dog & it is registered in the county under his name. The dog essentially lives at our house. The neighbor does not have another dog; so two dogs, two houses. When challenged 2 yrs ago the issue was put to rest after showing papers that the dog is legally registered in our county to the neighbor. Since then there's been a new president elected. A new family purchased a home recently & they had two dogs. Despite being aware of the one dog bylaw they moved in anyway. To our knowledge they were not and are not aware of two dogs living at our home. The board has decided "we are perceived as owning two dogs"and intends to take legal enforcement. A board member on our side( the motion passed 4-2)reports that much this new decision is spurned on by a disgruntled neighbor who has openly, at annual meetings, made disparaging remarks regarding living across the road from us. Also, the bylaw was created by this neighbor when he was president in 1968 & same board member said he is pissed that we found a legal loophole. Hearsay, I know, but this is a small community. In the May monthly minutes it said "after several months of observation"(no details of when, by whom, criteria etc.)"it is clear there are two dogs living on lot #19 exceeding the one dog limit". We feel, since this issue was put to rest two yrs ago, it is being dredged up arbitrarily, we are being targeted with malice ,our privacy has been grossly invaded due to the unclear observing with no notification beforehand, it is no one's business where we and our neighbor choose to have our dogs and neighborly relations have deteriorated as we don't know whose just walking by and whose "observing". Also, not all bylaws are being enacted such as homes being used as an emploment ( not allowed), exceeding more than one stove to accommodate renters(only one allowed per house) with most offenders being current or former board members. What do you think?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Roger replied 1 year ago.

Kirk Adams : Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question.
Kirk Adams : It sounds like you are on solid legal grounds to challenge the association if it comes after you.
Kirk Adams : FIRST, this second dog is not registered to you, doesn't legally belong to you and can't be linked to you other than by the fact that the dog has been seen at your property - - which doesn't prove anything except that your neighbor allows his dog to visit your home frequently.
Kirk Adams : According to the bylaw as I read it, the rule is only one child per house - - and no one can prove that this is not the case. They may speculate that you're actually keeping the dog, but as long as you and your neighbor stick to your guns, it would be very hard to prove you're in violation of the bylaw.
Kirk Adams : SECOND, if there are other members of the association that have more than one dog, and the association has not done anything about it, that is selective enforcement of the bylaws, which is also not legal. Thus, you would have a claim that they're picking on you - - even though you're not in violation of the bylaw - - and that they're not enforcing the rules against someone who is not in compliance.
Kirk Adams : The fact that they brought this matter up 2 1/2 years ago doesn't prohibit the association from re-visiting the issue UNLESS there's a notation or statement in the minutes approving your arrangement with your neighbor. If there's something in there that approves it, then you have a right to rely on that decision and enforce it.
Kirk Adams : However, if the association just didn't pursue the claim after proving that the dog was registered to the neighbor, then it could be brought back up since no definitive action was taken.
Customer:

Hi,Kirk- thx for response. To be clear no one else has a 2nd dog, they are violating other bylaws(I know my post was long) with no enforcement attempts. My daughter feels they are bluffing as their argument is weak at best. Do you think I should send an email regarding our position to the board and community members or not?

Kirk Adams : Ok. Thanks for the clarification.
Kirk Adams : Even so, if the association is selectively enforcing some rules and not others, that's still the same principle, and could be a position you can take IF the association pushes this.
Kirk Adams : It does sound like the association is trying to threaten or push you into getting rid of the dog.
Kirk Adams : It would be BEST if you had an attorney write the association, outline the fact that you are not in violation of the bylaw and inform the association that IF it files a frivolous suit against you, then you will sue it for malicious prosecution, abuse of process and possibly other claims.
Kirk Adams : You could send a letter yourself, but if they know you've hired an attorney over this, it's much more likely to send shockwaves!
Customer:

I feel, for starters, I can write an effective letter and infer we will seek counsel should it continue. Do you think it best to send the letter to the board, the lawyer( he is also a homeowner here:) &community members, both or all, or wait to see what they do? I would prefer to end it sooner.

Kirk Adams : A letter to the board should suffice.
Customer:

ok, thanks.

Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26566
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 10 other Real Estate Law Specialists are ready to help you
Expert:  Roger replied 1 year ago.
No problem. Please let me know how it goes.

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