Dale J. Degenshein in Legal/Financial on November 6, 2020
They might be man’s best friend, but what happens when dogs attack the residents of a condominium community? In Board of Managers of Fishkill Woods Condominium v. Gottlieb, the State Supreme Court's Appellate Division considered that issue, but also the important issues of whether the condominium board had the right to impose fines, and whether it had the right to obtain an award of attorneys’ fees. This case reminds us that the courts will be guided by the condominium’s governing documents – its declaration and by-laws.
In 2014 and again in 2015, residents at Fishkill Woods Condominium claimed they were attacked by Kenneth and Terry Gottliebs’ dogs. The Gottliebs claimed this was not so and that the dogs were never an “unreasonable annoyance.” Residents, however, signed a petition and attended monthly board meetings to voice their outrage and demand the removal of the dogs. In response, the board held two special meetings which the Gottliebs were invited to attend to present their side of the story. They did not attend.
The condominium’s declaration made it clear that the ability to keep a pet in the community is a privilege, not a right: “If, in the opinion of the Board, any pet becomes a source of unreasonable annoyance to others, or the owner of the pet fails or refuses to comply with these restrictions, the owner, upon written notice, may be required to remove the pet from the community.”
With that background, the managing agent informed the Gottliebs after the special meetings that the board had directed the immediate removal of the dogs. The condominium’s counsel sent a notice requiring that the dogs be removed within 30 days or the board would impose fines. Finally, the managing agent sent an additional three-day notice.
The condominium and the Gottliebs sued each other. The condominium wanted an order requiring the Gottliebs to remove the dogs and pay fines and attorneys’ fees.
The court explained that the declaration gave the board broad discretion in determining, in its business judgment, whether a pet constitutes an “unreasonable annoyance” and therefore should be removed from the community. Numerous residents expressed concerns about the dogs in writing, and they asserted that the dogs had attacked two people on two separate occasions. Residents also signed a petition demanding removal of the dogs. The court found no reason to believe that the board acted arbitrarily when it decided to direct that the dogs be removed, and the court – consistent with the Business Judgment Rule – refused to substitute its judgment for that of the board. Accordingly, it ordered the dogs be permanently removed from the community.
The next question concerned imposition of fines, and again the court turned to the condominium’s governing documents. The condominium took the position that it could fine the Gottliebs $100 per day for each day they failed to remove the dogs. However, the bylaws stated that the board could fine “up to $100 upon the violator” with an additional fine of up to “$100 each after serving written notice.” Thus, the court found that the maximum fine that could be levied was $100 for each dog for each violation, or $200, far less than the approximately $20,000 the board was asking for.
Finally, the board sought to bill its attorneys’ fees to the Gottliebs. In a 2018 decision, a lower court had awarded the condominium some $65,000 of the $81,000 it sought. In a June 2020 decision, the higher Appellate Court agreed with the holdings of the lower court. Turning once again to the condominium’s declaration and bylaws, the Appellate Court noted that the condominium was entitled to an award of attorneys’ fees “but only in connection with the [claims] for recovery of the unpaid fine” – that is, the fine the court reduced to $200. This was because the bylaws allowed the condominium to recover attorneys’ fees for the recovery of common charges, which included fines. No provisions allowed the board to recover fees in connection with claims for injunctive relief.
This case reminds us, once again, that the declaration and bylaws of a condominium constitute a contract between the unit-owner and the condominium association. While courts will occasionally look to the Business Corporation Law (which governs cooperatives), when it comes to governance issues in a condominium, the courts rely on the contract itself – the governing documents – when reviewing issues such as those raised in this case.
Dale J. Degenshein is a partner at the law firm Armstrong Teasdale. The statements and views in this article are her own and not necessarily those of the firm.
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