Q&A: These Pets are Too Big

Q My condo association has a bylaw that limits the size and number of pets. About a year ago, a person moved in with a large puppy that has grown to be a very large dog. I reported it to the management and they did some investigating—then issued a request to the owner to bring in a veterinarian certification as to the weight of the dog. I went to a board meeting and asked what the status was regarding the dog. Their answer was that they can do nothing. I asked why and their answer was: "If we try to fine the person, the judge will throw it out and we don't want to waste the money." The management person agreed and all the board nodded its assent! Is it unreasonable for me to expect them to enforce the rules? Do I have any recourse?

—Upset about Overweight Pooch

A “In response to the question concerning whether a unit owner has recourse for the failure of the board to enforce the condominium’s rules and regulations concerning the size of a pet unit owners are allowed to have, as with most lawyer’s responses, it depends,” says Mark A. Rosen, an attorney at the law firm of Goodman, Shapiro, & Lombardi, LLC in Dedham, Massachusetts.

“The starting point of any analysis of this issue is the condominium’s governing documents. Assuming the bylaws of the condominium give the power and duty to enforce the condominium’s rules and regulations to the board then it is the board’s duty to enforce violations of those rules and regulations and failure to do so could be a breach of that duty.

“In Massachusetts, a breach of fiduciary duty claim must be brought derivatively, which means that demand on the board must be made by the unit owner(s), the demand must be refused by the board and the complaining unit owner(s) must fairly represent a majority of the other unit owners in asserting the claim. Cigal v. Leader Development Corporation, 408, Mass. 212, 219, 557 N.E.2d 1119 (1990) and Cote v. Levine, 52 Mass. App. Ct. 435, 754 N.E.2d 127 (2001).

“The scenario raised by this particular unit owner raises certain questions before I would recommend making the demand or instituting a derivative action if the demand is rejected. First, is the size of the pet, in this instance a dog, limited by weight? I have assumed it does given the putative offending unit owner was requested to verify the dog’s weight. Assuming weight of the dog is a measure that violates the size limitation, the next inquiry would be whether the condominium’s governing documents give the board the power to levy fines, and if so, are the amounts of the fines specified. If not specified, or even if specified, the fines would have to be reasonable and related to correcting the violation.

“If fining would not be effective or considered punitive and therefore unenforceable, and the unit owner won’t voluntarily remove the dog, it would appear that the board would have no alternative but to seek judicial intervention. Whether a lawsuit to have the dog removed will be successful would depend upon many factors, including whether the average or normal weight of the particular breed of dog involved would be less than the size/weight limitation of the rule and/or regulation. If the normal/average weight of this particular breed of dog is greater than the size/weight limitation of the condominium’s rules and regulations, is it a de minimus amount or is it significantly greater that the maximum size/weight limitation. Finally, could it be argued that once you permit pets, including dogs, size/weight is not reasonably related to the potential harm the size/weight limitation is trying to prevent? In other words, what is the purpose of the size/weight limitation? If size/weight has nothing to do with the purpose of the restriction, a court could rule it is unenforceable.

“In summary, the unit owner is not bereft of recourse, but it might be an expensive (assuming the unit owner does not recover his/her attorney’s fees and costs) and potentially unsuccessful means to rectify a situation that might not even be a violation. A derivative suit will be no more successful than if the board had brought suit and therefore the unit owner should assess the same factors the board did in determining whether to fine the unit owner and/or bring a lawsuit against the unit owner.”