Recently, an appeals court upheld a Board’s demand for the removal of residents’ dogs…
but held that repeated fines for failure to remove the dogs were not proper – all pursuant to the Condominium’s by-laws.
In Board of Mgrs. of Fishkill Woods Condominium v Gottlieb, condominium unit owners owned two dogs which, in two separate incidents, attacked fellow condominium residents (in 2014 and 2016). In addition, residents issued complaints to the Board of Managers about the dogs. As a result of the attacks and the complaints, the Board demanded the removal of the dogs and, upon the dog owners’ failure to do so, began fining them $100 per day. Also, the Board circulated a petition which nearly all of the other unit owners signed in support of demanding removal of the dogs. The Board provided an opportunity to the dog owners to present their version of events at a meeting which the owners did not accept. The Board subsequently filed a lawsuit against the dog owners for failure to comply with the demand. They sought an order from the court to compel removal of the dogs, contending that the demand was valid based on the condominium’s governing documents and the business judgment rule. The Board also sought recovery of attorney’s fees. The dog owners sought a judgment from the court declaring that the demand for the removal of the dogs, as well as the fines, were unenforceable.
The trial court found in favor of the Board, ordering removal of the dogs. The trial court also agreed that the fine was proper pursuant to the condominium by-laws, but only up to $200. The trial court dismissed all of the dog owners’ claims. The dog owners appealed.
On appeal, the appellate court affirmed the trial court’s determination as to the demand to remove the dogs. The court reasoned that since the declaration expressly provides for the Board’s discretion in determining whether a unit owner is entitled to keep a pet, and that the decision to demand removal was well-founded (i.e., made in good faith and in furtherance of the condominium’s legitimate interest), the decision of the lower court was proper. Specifically, the declaration states that
“[t]he ability to keep a pet is a privilege, not a right. If, in the opinion of the [Board], any pet becomes a source of unreasonable annoyance to others, or the owner of the pet fails or refuses to comply with these restrictions, the owner, upon written notice, may be required to remove the pet [from] the Community.”
Based on the attacks, complaints, offers for reconciliation, and the petition, the Board proved that their decision to demand removal of the dogs should be protected from judicial review based on the business judgment rule since the Board’s decision “to direct the permanent removal of the dogs was within its authority, in good faith, and in furtherance of the Condominium’s legitimate interest.”
As for attorney’s fees, since the condominium’s by-laws allowed only for an award of attorney fees in connection with the collection of unpaid fines, the recovery was so limited. Similarly, since the by-laws do not expressly provide for a daily fine, the allowable fines were limited to $200 (i.e., $100 for the violation with an additional $100 after notice).
Takeaway:
The governing documents need to be observed by both the homeowners and the Board.
