A board member of a condominium corporation recently forwarded
me an interesting article from the New York Post about
Charlie, an adorable 3.5 pound Yorkie, whose owner was taken to
court by the condominium association of a 24-unit development in
Queens, New York.
The board of directors of this association had tried to get the
owner, Donna Forman, to remove her previous dog, a Shih Tzu, named
Rugby, and commenced an action in February 2001. During the court
process and before the decision was rendered, the dog died. Donna
then went on to replace Rugby with Charlie and attempted to get the
consent of the board. The board refused based on its no pets
policy. The board then commenced further proceedings under a
separate action to have Charlie removed.
The lower court found in favour of the association and ordered
that Charlie be removed. Then most recently, that decision was
overturned when the Appellate Division ruled that Charlie could
This case turned on a mere technicality in the wording of the
condominium documents. Although the association had a policy that
was in place that no pets were permitted, the bylaws of the
associated stated that unit owners, their pets and guests shall not
create a nuisance. The court found that by referencing that pets
could not create a nuisance meant that pets were permitted and
disregarded the no pets policy of the association. This condominium
association has now amended its rules to remove reference to
"pets" in an attempt to retain its no pets policy.
Poorly drafted rules or inconsistent wording in a declaration
may result in a board unable to enforce its provisions in the
condominium documentation. I have on occasion been contacted by
boards to enforce pet provisions and once reviewed, have determined
the provisions are unenforceable because of drafting errors or
inconsistencies. Charlie's action resulted in the association
having to absorb over $100,000 in legal costs. This cost amounted
to approximately $4,100 per owner.
Donna Forman was lucky. If the wording in the condominium
documentation had been clear and consistent, Charlie would be gone
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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