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…and other things that are better handled by law enforcement

By: Roy Helsing

Tom G. provided an interesting topic: “Hypothetical situation: A neighbor in the HOA has very loud barking dog(s) and will not train or control them. The CCRs clearly spell out that the dog is a nuisance.

The dog(s) is / are outside barking early morning and through the day and evening. People are awakened from sleep weekdays and weekends. When a complaint is made by the homeowner, what is the responsibility of the Board and Management Company for HOA dog barking? If the HOA dog barking does not stop, what recourse does the homeowner have?” I always wonder how hypothetical these things really are, but even if it is hypothetical to Tom’s association it is actually a pretty frequent concern across Homeowners Associations in general. Nuisance dogs, particularly loud barking dogs, can really be annoying.

My first comment is that some things are better dealt with through government agencies, and barking dogs is one of them. Most jurisdictions will, upon receiving a complaint, have animal control dispatched to investigate the issue. If valid, animal control will typically give the homeowner a chance to correct the situation. If it continues, then they are much more effective (and much quicker) at removing the offending animal than the association.

Often homeowners forget that just because they live in a Common Interest Development, they are still taxpayers and some issues (loud parties, domestic disturbances, and nuisance animals, amongst others) violate local ordinances and law enforcement is the proper and most effective solution.

Taking Tom’s hypothetical at face value, however, this HOA dog barking violates the association’s governing documents. The association does have a duty to enforce its rules, and to that extent the association can take action. In my personal opinion, the homeowner who complains to the association should be told a couple of things. First, they should be informed that animal control is a more effective method of dealing with these issues. Secondly, they should be given an explanation as to why animal control will be most effective.

The why is simple – the association is going to have to enter into the enforcement process in an even handed manner. That means sending a compliance letter, if that doesn’t work maybe a second one, and then a hearing to give the homeowner a chance to present his or her side of the story. If the Board then determines the dog is a nuisance they can levy a fine. Then they need to wait and see if that has any effect. If not, they can get with their attorney and consider court action. That will typically involve other meetings with the offending homeowner and reasonable opportunities for resolution. If that still doesn’t solve the issue, then they can choose to litigate it – which can be costly, with no guarantee that the association’s legal fees will be recovered. More importantly, this process will take months – often many months. During that period of time the Board (or management) typically cannot give the complaining homeowner any details on progress and guess what – the dang dog is barking all this time!

Basically, the association’s process is very slow for HOA dog barking, and if the offending homeowner does not comply, can be very costly. Law enforcement, on the other hand, is often very quick and they have a duty to enforce the local noise ordinances. Both actions can happen at once, but if the pet is actually a nuisance the law enforcement (animal control) action will likely solve the problem before the association can even get to a hearing.

Interestingly enough, many people do not want to call law enforcement on their neighbors and feel they can hide behind the anonymity of the association. Eventually, in order for the association to take action (assuming homeowner resistance), there will be no anonymity. If you are the type of homeowner who does not like calling the police, you might see if one letter from the association solves it (sometimes it does) and if that does not work then call the police.

Lastly, some people are more noise sensitive than others. It is possible the association feels that the HOA dog barking is not a nuisance but it is still bothering you. In that case, you have the right to enforce the CC&Rs yourself. You can always call an attorney and take legal action against your neighbor – that is something for you to decide. It is also a back door into the last question asked. What recourse does the offending homeowner have if the association does not act? You certainly have the right to get legal advice and decide if you want to sue the association. In my non-legal opinion, it might be cheaper to simply take legal action against the homeowner because there is always the chance that the barking is only a problem to you, not anyone else.

In any case, it seems like using animal control in these situations is the most effective and efficient solution. The association enforcing will eventually solve the issue, but the dog will be barking for a long time while that process takes its path. On the other hand, if you were the homeowner being complained against, you would be glad there is a procedure that gives you due process and an opportunity to both correct the situation and be heard. Also, just to be clear, my experience with animal control is they also will give the homeowner a reasonable chance to control the situation and will satisfy themselves that it really is a nuisance.

Articles are for advertising and general information by The Helsing Group, Inc. They are not intended to provide legal advice, but rather reflect our opinions as Community Association managers and Consultants. Readers should not act on issues raised in our newsletters or websites without consulting legal counsel.

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