D.C. from Westchester County, NY writes:
Dear Mister Condo,
I live in a pet-friendly condo in Westchester County, NY with a 1 dog pet policy rule. In October of 2013 I brought my two dogs in from overseas with intentions of situating one with my relative. There were a series of events that prevented me from doing this and the managing agent sent me a first letter in October regarding the pet violation and a second letter in February of 2014 regarding the violation of the pet policy rule. In March of 2014, after serving on the board for 2 months, I was handed a letter from the condo’s attorney asking me to resign from the board within 30 days because I went against my fiduciary duties and to remove the 2 dogs within 30 days because of excessive barking. So now I am not allowed to keep even the 1 dog permitted in the House rules. I learned in the meantime that the House Rules were amended at least twice since the building was built in 1987. The original by laws state 1 dog, the amended by-laws must state more than 1 dog because there are at least 2 condo unit owners with 2 dogs. Then they must have amended the house rules again because it is 1 dog since 2006. There is also a condo owner with 2 dogs who purchased the condo in 2009-2010. My first question is this: do the amended condo house rules need to be filed with the Attorney General to be valid? Can I try and keep my 2 dogs legally because there is someone else who is NOT grandfathered in? And my dogs are NOT creating a nuisance because I have been digitally recording them 24 hours a day for the past 2 months and all you hear is my TV during my absence and my voice during the evening hours. Needless to say my building is in front of a Pet Resort that functions as a doggie day care center and overnight hotel for dogs. Do I have a fighting chance to keep my two dogs?
Mister Condo replies:
D.C., greetings from your condo neighbors in Connecticut. We have unit owners who face similar challenges to yours quite often. Our furry friends are often as precious to us as human family members and it is very difficult to negotiate a “win/win” situation when it comes to keeping the pet owner and the association happy. You have quite a few issues here so let me begin by informing you that I am not an attorney and my first advice to you is to seek legal counsel. Your association has already done so and I think that you would be wise to fight fire with fire less you become overwhelmed by the rules and the attorney’s interpretations of the rules and your rights as a unit owner. It can all be a bit overwhelming.
Regardless of the House rules or amended rules filed with the Attorney General or whoever, I think it is wise to start at the beginning. You stated you never had any intention of domiciling two pets at your unit and you were aware of the 1 pet rule when you brought your pets from overseas to be with you here in the states. Clearly, you have the right to have at least one pet in your unit. If there are also rules about noise violations (most associations do have rules about noisy pets and a process for removing noise offenders) and you have been shown to have violated the noise rules, the Board may be able to take corrective action against you. In most cases, you would need to be served with a notice of the noise rule violation, followed by an opportunity to appear before the Board to dispute the allegation (this is where your digital surveillance evidence might come in handy). If the Board finds that you are in violation, the next step is usually a fine, followed by removal of the pet for repeated violations. From what you have described to me, I would say that the Board has not taken those steps. An attorney could better advise you of your rights in New York but that’s pretty much how it would work in Connecticut. Of course, that only accounts for one of your two dogs.
As for the enforceability of a rule that you know to have been broken and is currently being broken by other unit owners within the association, you and your pets may have a leg (or four!) to stand on. If you are being singled out or discriminated against in any way by your Board, an attorney can best guide you on what steps you can take to countersue or file a discrimination claim against the Board. Be prepared to provide solid evidence of all that you claim (other units with multiple pets). Boards need to take discrimination claims very seriously, Resulting judgments can run into the hundreds of thousands of dollars. Again, consult with your attorney before taking any such action.
Finally, there is the matter of your “resignation” from the Board. There are certain circumstances where a Board member can be removed by fellow Board members. Failure to fulfill a fiduciary duty is one of those circumstances but it doesn’t sound like the Board took a vote. Rather, you were strong-armed into making a resignation. From what you have described here, you were working to remedy the situation and exploring your legal rights to keep both dogs. That hardly qualifies as a failure to fulfill a fiduciary duty. If you otherwise enjoyed your service on the Board and the association members were happy with your volunteer service, I would strongly encourage you to run for reelection to the Board. Community Association governance is challenging but attorneys and Boards need to play by the rules. Your association documents (amended or otherwise) spell out the rights of all unit owners and describe the rules of conduct for elected Board members. It is quite possible that you did not violate your fiduciary duty to the association and your resignation was ill-advised. Of course, I haven’t heard the other side of the story so I don’t have a fair and balanced accounting of what has happened. I do know that there is due process and you have rights. An attorney will help you defend those rights and, hopefully, bring your story to a happy ending. All the best!