No Dogs Allowed?

A recent case out of New York’s Supreme Court, Appellate Division: Second Judicial Division is generating a lot of discussion among practitioners on a condo listserve; I don’t personally find the case particularly surprising or troubling in its result.

The case involves the Village View Condominium, in Queens, New York. The Association’s bylaws, according to the court opinion, included no restrictions on pet ownership in the condominium, and further state that “unit owners ‘and their pets’ shall not disturb the other owners.”

Ms. Donata Forman had a pet dog, which weighed less than four pounds, that she would take to and from her unit in a shoulder bag. The Association Board conceded that no one outside of the defendant’s apartment had heard the dog bark when he was inside the apartment.

The court noted that New York Real Property Law § 339-v[1][i] requires that an association’s bylaws set forth “[s]uch restrictions on and requirements respecting the use and maintenance of the units… as are designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners.”

Because the rule conflicted with the bylaws, and because it affected Ms. Forman’s use, the court deemed it invalid, and remanded the case to the lower court for the entry of a judgment declaring that House Rule 1 is invalid.

It seems rather foolish of the board and their counsel to have taken this case as far as they did; not only is there the express conflict between the bylaws and the rules, but there seems to be no harm in this woman’s ownership of her dog.  Most likely, the board was concerned about “bad precedent” or a “waiver” argument, but both the conflict and the bad facts could have been avoided by prohibiting pets that make noise or disturb others.  (Of course that opens the door for factual disputes, but that’s probably better than adoption of an unenforceable rule.)

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