Rules and Regulations Video — Part 2

In this installment of the Rules and Regulations presentation, I discuss an association’s successful adoption of a pet policy.

This is the second installment of a four-part series on Rule Making and Enforcement. Here’s a link to thefirst installment, on the distinctions between regulations and rules.

DISCLAIMER:  In the interests of poetic license, preservation of confidentiality and due to a failing memory, certain aspects of the story have been changed.

“On Tonight’s Agenda, We’ll be Focusing on Our ‘Human Policy'”

It’s not likely that the Hillbrook-Tall Oaks Civic Association is likely to adopt any unreasonable restrictions on dogs in the near future, although cats may have cause for concern.

That’s because, according to this Washington Post article, the association’s elected president is a dog.  And a visit to the association’s Facebook Page seems to confirm it. Unfortunately, the Facebook page doesn’t have any pictures of the president, who was apparently nominated when no one was willing to serve, and was elected by a rather informal raising of hands.

The president, Ms. Beatha Lee, is a wheaten terrior.  The AKC description of this breed does seem to indicate that the breed has potential in the leadership of a community association:

The Wheaten is a happy, steady dog and shows himself gaily with an air of self-confidence. He is alert and exhibits interest in his surroundings; exhibits less aggressiveness than is sometimes encouraged in other terriers. Major Fault–Timid or overly aggressive dogs.

I suppose any tendencies towards over aggressiveness would be blamed on the fact that “she always has been, and always will be, a bitch…”

Thanks to Donna DiMaggio Berger for the tip!

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.)

Getting the Scoop on that Poop

Several colleagues and clients have sent me links, over the past few weeks, to the news stories about the Baltimore condominium association that was considering a policy to require pets to have their DNA registered, with the intent to track down those owners who don’t clean up after their dogs.

As anyone in the community association industry will tell you, pets are one of the biggest areas of controversy in many associations, and dog droppings are a major source of that controversy.  It seems that most pet owners like to walk their pets, but a significant percentage (estimated at 40%) don’t bother to clean up.  Associations respond to the problem by having designated pet areas, accessible bag stations, and fines for those offenders who get caught.

With the assistance of BioPet Vet Lab, however, associations have a new option.  For a mere $49.95, you can pack up some of the evidence, and send it off for analysis.  If the dog’s in your association’s database, you’ll have the evidence that you need to track down the dog, and fine his or her owner.

Of course if it’s a dog from the association next door, or a stray who’s not from your association, you will have wasted $49.95.  (Although another service that they provide is an analysis of the breed of the animal based upon the DNA, so if there aren’t many shar peis in your neighborhood, you’ll at least have some circumstantial evidence.

Here’s how BioPet Vet Lab suggests that you proceed:

Step 1. Associations pass an amendment to their covenants requiring dog owners to register each of their dogs. This will create the neighborhood reference database.

Step 2. When an association registers with BioPet they receive a unique BioPet account code. There is a $100.00 registration deposit. The deposit will be applied to your first order of DNA Pet ID kits.

Step 3. The association purchases DNA Pet ID kits from BioPet for each dog to be registered. Kit cost is $29.95 each. The registration cost from step 2 will be deducted from this total.

Step 4. Once the association receives the kits, they distribute them to neighborhood dog owners. It is the association’s responsibility to ensure the collection of DNA samples and that each sample be marked with the associations’ BioPet account code.

Step 5. Associations purchase Poo collection kits which contain everything they need to send in a sample for DNA matching to the reference database. Each collection kit is $2 with a minimum order of 24 kits.

Step 6. Send in the poo sample with the $49.95 processing fee. Associations may elect to fine the dog owner to recoup this cost.

Step 7. BioPet returns the Pet ID number of the dog that matches the poo sample by email. The HOA will be able to look up the owner of that dog by itÆs Pet ID number.

Having visited the site, and read how it works, I’m actually quite surprised that more associations aren’t doing this.  Before they do so, however, I’d recommend that they review the proposed policy with competent legal counsel.  I think there are a few other steps that associations should include in the process, to assure due process before fining owners.

Rudy Giuliani’s Answer to the Perpetual Pet Problem

According to an article in the New York Times, Mayor Rudy Giuliani used to offer rather candid advice to his callers on his weekly radio show. When called about the problem of owners who refused to clean up after their dogs, the Mayor reportedly responded:

“I get angry about this all the time! When I was a private citizen I would go up to people and tell them they were slobs,” Mr. Giuliani recalled. “I would say: ‘Hey, you’re a real slob. And you’re disrespectful of the rights of other people. Clean up after your dog, damn it!’”

This is neither a political endorsement nor a criticism. I just thought you might find it interesting, and perhaps useful.

Perhaps a reader ought to present this question at the nest YouTube debate.