REGULATING DOGS IN HOAs

Nuisance Barking

Definitions can be limited to excessive barking or expanded to include other issues. Following are some examples:

Example #1:  Nuisance noise from a dog is defined as barking or whining for more than 5 minutes in any 1-hour period.

Example #2:  Excessive barking is barking that is persistent and occurs for an extended period of time or on a repeated basis. When determining if barking is a violation, consideration will be given to the time of day, duration, and frequency of barking.

Example #3:  No animal shall be allowed to unreasonably annoy residents, to endanger the life or health of other animals or persons, or to substantially interfere with the quiet enjoyment of others. Pet owners shall be deemed in violation if their pets:

• consistently or constantly makes excessive noise;
• cause damage to or destruction of another's property;
• cause unsanitary, dangerous, or offensive conditions, including the fouling of the air by offensive odor emanating from excessive excrement; or
• create a pest, parasite, or scavenger control problem that is not effectively treated.

Example #4  Animals will be deemed a nuisance that commit acts which include, but are not limited to, the following:

• Any dog that chases, runs after, or jumps at vehicles moving on streets and alleys.
• Any dog that attacks, bites, or injures a person or snaps, growls, snarls, jumps upon, or otherwise threatens persons without provocation. These acts shall be considered a violation whether or not the dog is confined by a fence, chain, or leash or under the voice control of a responsible person.
• Any animal that howls, yelps, whines, or barks in such a manner as to unreasonably disturb any person.
• Any animal that feeds from, turns over, or disturbs garbage containers.
• Any animal that scratches or digs in flowerbeds or otherwise damages the property of another owner.
• Any dog or cat that goes onto the property of another or onto common areas to attack another animal or fowl.
• Cats or dogs that crawl upon, sleep on, scratch, or otherwise soil the property of another.

Once a complaint is made, boards will often send a letter to the pet owner notifying them that neighbors have complained about the barking. If the letter from the board is only a warning, the board is not required to identify the source of the complaint. If the problem continues, the board must hold a hearing with the owner and decide that a nuisance exists. Once that is done, penalties can range from fines/penalties to muzzling dogs deemed aggressive to banishing nuisance animals from the association.

Dangerous Dogs

A problem for boards is deciding when a dog is dangerous. For purposes of defining a "vicious" or "dangerous" dog when drafting rules, boards should consider one of the following sample definitions:

• Any dog that, when unprovoked, inflicts bites or attacks a human being or domestic animal, or in a vicious or terrorizing manner, approaches any person in an apparent attitude of attack in the association's common areas; or
• Any dog with a known propensity, tendency, or disposition to attack unprovoked, to cause injury, or to otherwise endanger the safety of human beings or domestic animals; or
• Any dog that engages in, or is found to have been trained to engage in, exhibitions of dog fighting; or
• Any dog at large found to attack, menace, chase, display threatening or aggressive behavior, or otherwise threaten or endanger the safety of any domestic animal or person.

Condominium associations are particularly vulnerable to aggressive dogs because interior common hallways and elevators bring owners into close contact with dogs. Owners should not have to squeeze against hallway walls to get out of a dog's way or avoid taking an elevator because a 130-pound Rottweiler is on it. Large, aggressive dogs can maim and kill in a matter of seconds. The very young and the very old are especially vulnerable to attack. For the safety of the membership, many associations impose restrictions on the size and breeds of animals.

What is a Pit Bull?

Section 43(a) of the San Francisco Health Code defines a pit bull as including: "...any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the physical traits of any one or more of the above breeds, or any dog exhibiting those distinguishing characteristics that conform to the standards established by the American Kennel Club (‘AKC’) or United Kennel Club (‘UKC’) for any of the above breeds."

This language had been upheld in two cases in which the federal district courts rejected the contention that the language was vague: American Canine Foundation v. Sun (N.D. Cal., Mar. 21, 2007, No. C-06-4713MMC) 2007 WL 878573 at page 9; Coalition of Human Advocates for K9’s and Owners v. City and County of San Francisco (N.D. Cal., Feb. 27, 2007, No. C-06-1887 MMC) 2007 WL 641197, at pages 11-12. In Tracey v. Solesky 50 A.3d 1075 (2012), the Maryland Court of Appeals concluded that "Today, the majority holds that a pit bull or any dog with a trace of pit bull ancestry...shall be deemed henceforth vicious and inherently dangerous as a matter of law." A common definition of a pit bull used by California counties is:

“Pit bull” includes any dog that is a Bull Terrier, Miniature Bull Terrier, American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog that exhibits physical traits of any one or more of the above breeds or any dog exhibiting those distinguishing characteristics which conform to the standards established by the American Kennel Club (“AKC”), United Kennel Club (“UKC”), or American Dog Breeders Association (“ADBA”) for any of the above breeds. These standards are listed on the clubs’ websites.

Although pit bulls can be gentle and don't bite as often as other dogs, the injuries can be catastrophic when they do attack. That is because pit bulls have enormous jaw strength and a "hold and shake" bite style that often inflicts permanent and disfiguring injuries. Even though pit bulls only make up 5% of the U.S. dog population, they dominate in fatal attacks nationwide. As a result, many governmental agencies restrict dangerous breeds. As of December 3, 2014, the estimated number of U.S. organizations with breed-specific laws was as follows: Cities: 860; Counties: 26; States: 37; Military Bases: 292. (See www.dogsbite.org.) 

Liability for Injuries

The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. (Civ. Code § 3342) In addition to actions against owners for violations of CC&Rs and Rules, owners can be sued for violations of Civil Code § 3342.5 and local ordinances.

Without knowledge of a dog's dangerous propensities, an association is not liable for the injuries inflicted by the dog. (Chee v. Amanda Goldt Property Management) However, once a board is on notice that a dog is dangerous, it must take action to protect the membership from the dog or face potential liability for negligence and breach of fiduciary duties.

In March 2002, a jury convicted Marjorie Knoller of second-degree murder because her dog mauled to death her neighbor, 33-year-old Diane Whipple, a college lacrosse coach. Whipple was bitten an estimated 77 times and had her neck torn apart. Marjorie Knoller and her husband were also found guilty of involuntary manslaughter and owning a "mischievous" animal, for which they were sentenced to 4 years in jail. The Knollers were fully aware of the aggressive tendencies of their dogs.

Prohibiting Aggressive Breeds

Condominium associations are vulnerable to aggressive dogs because indoor common hallways and elevators bring owners into close contact with dogs. Some associations have banned particular breeds of dogs altogether. This can be done by adopting a rule or by amending the CC&Rs.

Muzzling Dogs. If, after a hearing with the owner of a dog, the board makes a good-faith determination that a dog has a propensity to nip at or bite people or other animals, the board can require that the dog be muzzled whenever the dog is on or passing through the common areas. If the owner refuses to muzzle his dog, the association can go to court for an order that the dog be permanently removed from the property.

Other Actions. Other actions that can be taken include limiting the size of dogs (the most common limitation is by weight, with the following maximum weights most frequently used by condominium associations: 15, 20, 25, 30, 35, 40, or 45 pounds).

Dog Leashes and Tethers

Enforcing Leash Requirements. The board has a duty to either reasonably enforce the existing leash requirements in their CC&Rs or rules. If the CC&Rs are not enforced and someone is injured by a loose dog, the association (and the board) would likely be sued. It might be that voice commands and electronic leashes are effective alternatives to traditional leashes. However, this is a matter that should be debated and voted on by the membership. If the leash requirement is in the Rules rather than the CC&Rs, the board should send a proposed rule change to the membership for feedback before making the change.

Lease Ordinances. Associations are required to enforce their own restrictions, not city or county ordinances. Boards enforce HOA rules, and cities enforce their own ordinances. Unless the ordinance states otherwise, an association is not obligated, nor is it authorized to be the enforcement arm of the city. If an owner violates the city’s leash ordinance, someone notifies the city, and the city orders the person to cease violating its ordinance. If, however, the association’s CC&Rs have a provision that any violation of a local ordinance is deemed a violation of the nuisance provision of the CC&Rs, then the association can fine the person, but it does so as a violation of the CC&Rs, not as a violation of the ordinance.

Tethering Dogs.  Irresponsible pet owners prompted the passage of a 2006 law regarding the mistreatment of dogs. The statute prohibits persons from tethering, fastening, chaining, tying, or restraining a dog to a doghouse, tree, fence, or other stationary object for more than 3 hours in a 24-hour period. (Health & Safety Code § 122335) Violations can result in a misdemeanor and fines. Dogs tethered for extended periods often become a nuisance by whining and barking, either out of loneliness, boredom, or distress. Moreover, they are prone to injury from choke chains, entanglement in their tethers, and heat stroke. 

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