QUESTION: I live in a cooperative, where the rule specifically states that there can be no pets. Those who screamed loudest in favor of the adoption of that rule now are housing noisy cats. What action can be taken?
ANSWER: In my experience, when one who lives in a condominium or cooperative, one has to put up with what I call the "4 Ps of Community Living." These are: pets, parking, plumbing and (more significantly) people.
As this column has suggested on many occasions, whenever one looks to the authority of the board of directors, one has to look to the sources of power. In a condominium, the first power source is the condominium law of the jurisdiction in which the property is located. The next significant power source is the condominium declaration, then the bylaws and then the house rules.
There have been court opinions in Florida stating that the board of directors must be reasonable when adopting rules in conformity with the declaration and bylaws, but when they are enforcing the declaration itself, they can be a little unreasonable. Needless to say, common sense must be considered when considering action in a condominium or cooperative.
In a cooperative association, the power sources are generally the articles of incorporation, the bylaws of the association, and then the house rules.
Often in a cooperative, the board of directors has a little greater authority to promulgate and enforce rules than does a board of directors in a condominium association. Nevertheless, whether you are living in a cooperative or condominium association, if the rules state that there can be no pets, and if these rules are reasonable (i.e., fall within the power source), unit owners who reside in that association are obligated to follow those rules.
The board of directors has a legal obligation--called a fiduciary duty--to assure that the rules and regulations of the association are followed strictly.
It is not fair for the association to be arbitrary in its enforcement. In other words, it cannot enforce the rules against one unit owner and not another unit owner. Either the rules must be enforced across the board, or not at all.
If there are pets in your building, and if your bylaws (or rules) clearly state that there can be no pets, you should put the board of directors on notice immediately that it has a duty to enforce the rules.
How does the board of directors go about doing this?
First, you have to look to your association documents. In some associations, failure to comply with applicable rules and regulations can be met with a fine, which can mount up daily, weekly or monthly if the rule continues to be broken.
In some associations, certain privileges can be taken away until the rules are followed--such as use of swimming pool, or voting in the association.
As a final resort, however, the board of directors can take legal action to enjoin the unit owner (or cooperative owner) from violating those rules. While this is time consuming and expensive, as indicated earlier, the board of directors really has no choice. It must follow the rules if the underlying concept of the community association is to be met. The underlying concept is, of course, that the association is a minidemocracy, and everyone must follow the legitimate and reasonable rules of the association.
In recent years, the courts in many jurisdictions have found themselves addressing the question of pets in a condominium or cooperative association. More often than not, the courts have upheld the enforcement of the association's rules, and required the pet owner (in a nonpet building) to get rid of the pet or to move out.
Often, if the community association is successful in court, the judge will award the association reasonable attorneys fees, and require the erring unit owner to pay those fees.
But the issue of fees--albeit important--should not be the sole criteria on which to determine whether to move forward against an erring owner. If the condominium association is to remain strong, it must take all necessary actions to enforce its own rules.
As indicated earlier, this does not mean that every rule is, in fact, valid and binding against a unit owner. One must go to the power source to determine that issue.