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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 33424
Experience:  Began practicing law in 1992
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My condo association is considering to start requiring

Customer Question

My condo association is considering to start requiring residents to have their dogs DNA tested so they can determine who is not picking up dog poop. I have lived at these condos for 5 years and I am an owner of a condo and this has never been required before. They say they will not charge grandfathered dog any fees, but they will be required to get the DNA testing done. And if you refuse, you will be charged a $50 fine for non-compliance, plus if you do not pay the fine within 30 days they will also charge you $10 per day until you do pay all the fines. They can also put a lien against my condo if I do not pay.
I feel this is a violation of my personal choice and civil rights because they are asking for information on MY personal property and the DNA information will be stored with a 3rd party vendor for future reference as needed. I pick up after my dog. I am not a criminal and have not done anything wrong. PLUS I do not want to know any details about the breed or otherwise about my dog that would be found out through DNA testing. What options do I have, if any?
thank you. ***** have any recourse in NOT allowing my dog to be DNA tested? Is it a violation of my rights as they are taking away my right of choice? and/or is there any legal documentation I could get to prevent them from DNA testing my dog?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

It's not going to be a violation of your civil rights but it could be a violation of your rights as an owner. However, the only way you will know that for sure is to have someone read through the bylaws, documents that created the COA, and the other rules and regulations that apply and were adopted by the COA.

As to what you can do to prevent this there is only one option assuming that the COA doesn't just agree and that is to file a lawsuit with the court seeking an injunction against them enforcing this particular provision. If you are being "grandfathered in" then there is really no reason for them to force you to undergo any of the testing so I would think on that basis alone you stand a good chance of winning .

Most people at this point ask if they will need an attorney and while the law doesn't require you to have one, injunctions are what are known as extraordinary remedies and thus are very difficult to obtain and unless they are done 100% correctly the judge will have no choice but to deny your request and potentially make you pay for the other side's attorney's fees.

The steps to an injunction are:

1) An Application for TRO (Temporary Restraining Order) is filed along with supporting evidence such as affidavits. Usually the Application for Injunction is made at the same time. The TRO is a temporary measure and is not absolutely required before you get an injunction.
2) An Ex Parte (without the other side present) Hearing is conducted and the judge either issues the TRO or denies it. If the TRO is issued the judge orders a bond set in a sufficient amount to compensate the other side for any damages accumulated while the TRO is in place if the applicant fails to prove their right to an injunction.
3) A hearing on the TRO is set.
4) The TRO and notice of Hearing is served on the defendant.
5) The defendant should immediately begin following the judge's orders.
6) The TRO hearing is held and each side has an opportunity to present evidence and question witnesses.
7) The judge makes the decision on whether to convert the TRO to a Temporary Injunction or not.
8) If the TRO is converted to a Temporary Injunction then the judge sets a new bond to be in place.
9) Discovery is conducted by both sides.
10) A request for hearing date is made on the matter of converting the Temporary Injunction into a Permanent Injunction.
11) The hearing/trial is held on the Permanent Injunction and the judge issues a ruling.

These are what are known as extraordinary remedies and the procedural rules for these as well as the case law are EXTREMELY specific and difficult. If ANY mistakes are made the judge has no choice but to deny the relief and will not likely reconsider it in the future.

Just as an example, getting injunctive relief, both temporary and permanent, requires that evidence be offered of:
1) An immediate need,
2) Which, if not granted, will result in irreparable harm,
3) With no adequate remedy at law, and
4) (on temporary order) The person requesting the injunction is likely to succeed at a full trial on the merits.

If evidence is not offered to meet these four requirements, in a manner that the judge knows this is what the evidence shows, then the petition will be denied.

There are more requirements than this depending on the exact facts of the case but it is very, very easy to mess up one of these and end up having to pay damages to the other side just because your paperwork wasn't done properly.

Expert:  Dwayne B. replied 1 year ago.

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