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.
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!
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.