By: Andrea Dunn
Every Association has dealt with the complaints. One (or more) unit owner who refuses to clean up after their dog. It seems like such an easy thing for a unit owner to do, but for whatever reason, certain unit owners don’t find it necessary to bag the waste and dispose of it properly. This can lead to an infestation of parasites, deer ticks and, sometimes, rats. The property manager has sent letters to no avail or receives a response such as “It’s not my dog’s waste, I always pick it up. Your information is wrong”. What is an Association to do at this point? The rules state that pets are to be on leash and that waste is to be picked up immediately and disposed of properly.
The first thing to consider is what evidence exists to back up the claim. Did another unit owner take a photo of the incident? Is the complaining unit owner willing to come forward and present evidence? Typically, if the warning notice from the property manager does not fix the problem, the Association will have a hearing with the unit owner. This must be done within the statutory framework of the Common Interest Ownership Act, §47-244(a)(11): notice sent to the unit owner with at least ten (10) business days notice prior to the hearing date notifying the unit owner of the rule violation, their right to be heard and attend the hearing and have witnesses and that the Board will issue a decision after the hearing. Remember, that even if the unit owner fails to attend the hearing, the Board can issue a decision. These steps are important and, if not done properly, could result in a court action being dismissed should the matter make its way to a foreclosure action for the non payment of fines issued for the violations.
If the Board votes to fine the offending unit owner daily until the unit owner decides to comply with the rules, this could result in fines ranging into the thousands depending on what an Association’s bylaws allow for fines in a short period of time. So, for example, a Board issues daily fines of $50.00 per day until the unit owner complies. This could result in $1,500.00 in a 30 day month. If the offending unit owner does not pay the fines, within 30 days, a foreclosure action may be started for the fine amount. This should be an easy argument to make to the court, right?
MAYBE. Let’s say the unit owner finally wakes up upon receiving the court summons and decides to fight. His argument? It’s not my dog’s waste. I need to see proof for everyday that a fine was issued that my dog defecated and I didn’t pick it up. There are numerous dogs at the condominium and it could be any of their waste. If you are fining me daily, there should be proof for everyday my account was issued a fine. NOW WHAT? Do you have photos of his dog defecating for 30 days straight? Does your property manager visit the property daily just as the offending unit owner’s dog is doing his business and can testify? Should the unit owner make these types of claims, the association will have to answer to justify the fines. Remember that fines are not to be extra sources of income for the association. Fines are to encourage compliance, not make money.
So what can an Association do to make a better case? If your Association has cameras, pinpoint the times when the dog does his business and keep track or do a sampling of days and keep a file of the offenses for the hearing and court case. Encourage unit owners to speak up and take note of the dates and unit number that witnessed the act. If the property manager makes weekly visits, have him/her check and note the date/time. This may result in fewer days to fine, but your proof will be solid for lack of a better word. If the problem is big enough, ask for volunteers to take shifts in the morning or evening when most dogs are doing their business.
Another option is DNA testing. Yes, this really is a thing. Some communities have policies that require dog owners to submit to DNA testing so that this profile can be kept on file. This way, if there is a problem, the waste can be tested and the offending unit owner is fined. This can be costly and somewhat cumbersome. The property manager would have to be present when the dog is giving the sample so that no shenanigans can occur with unit owners simply using a friend’s dog for the test to prevent their dog from being caught.
My point is not to discourage Association’s from enforcing the rules. These rules need to be enforced as pet waste left on the common areas can lead to infestations. My point is to protect the Association with proof. The proof will save you and when confronted with proof, a unit owner is more likely to comply with the rules. So, get the proof and watch where you step.