dog biting homeowner...

Jim,

Even animal control doesn't make the dog be removed for one bite.

My suggestion:

Compromise, dog must wear a muzzle when walked on common areas or in the unfenced yard of the property.

BTW: Was animal control called?

If they were, what was their determination?
If they were not, why not (as they are trained to evaluate these things)?

ABSURD

A dog outside its' owner's control (albeit leashed) bit someone.
The bitee, instead of calling police and/or animal control, complains to the HOA!?
The HOA has CLEAR governing docs regarding the removal of a dog which bites.
The dog's owner whines and moans.
The HOA contemplates 'caving'.

Like I stated: ABSURD

however

The attorneys WILL get new cars from this issue.

Lighten up PitA...lol...

There's no consideration being given for the HOA caving. I'll let you know if there are any attorneys getting involved. Am guessing that anything is possible, but i'd be surprised if any legal action is needed. At this point in time, it's just a discussion issue...lol..

oljim, in texas

Jim,

What I am saying is that the Board is likely untrained to determine if the animal is dangerous or not. Animal control has that responsibility and authority.

I take it from your response that the issue was never reported to animal control.
That simply doesn't make sense.
Animal control has the authority to fine, quarantine, evaluate and determine what should or should not happen to the animal (including death). Failure to report the incident to animal control may, just may, be letting a dangerous animal continue to live with zero controls put in place. This action may end up allowing the animal to bite someone else. Sure, your development may be safer because you made the animal someone elses problem.

In my County, there are specific laws regarding animal bites.
Expecting your County is the same, you should let that guide your policy.

Expecting that your citation is a policy resolution and not within the CC&Rs, I honestly don't think that your Association has the authority to force someone to remove the animal from their home. Of course, to test such authority, legal action would be required. Owners who see their pets as their children are more likely to seek legal action.

Therefore, if the citation is a policy vs. a covenant, I would recommend seeking a legal opinion if that passage would withstand a legal challenge. I suspect, just as with rental restrictions, it will depend on what document the language is in. It might also depend if you are within a condominium or detached homes.

Tim

I'd like to add that this is the case with some of our policy resolutions.

We have a resolution that allows us to impose monetary penalties for covenant violations.
However, imposing such penalties is beyond the Board's authority because it wasn't in the CC&Rs.
It had always been beyond the Boards, but all the Associations were doing it that way.
Then a few years ago someone challenged their Board and the courts ruled.
Such a policy was indeed beyond the Boards authority.

BTW: There were other issues involved as well. See:

Reston’s Shadowood condominiums make new Va. case law, can’t fine owners for rule violations Washington Post article

The actual ruling is attached

Looks like we crossed our posts.

With the citation being in the CC&Rs, then (in my opinion) it is enforceable.

I've always stated that the Board does not have the authority to waive a covenant unless the CC&Rs give them that authority. Therefore, regardless of the desire, you may have no choice in the matter.

I've posted before that I'm in the process of rewriting our pet policy because it doesn't require animal control to be involved. The rewrite requires any attack to be reported to animal control prior to the Board becoming involved. The Board will then take it's que from animal controls determination of the situation. Again, the reasoning is that they are more trained then we are in evaluating such situations.

Jim,

Actually, in rereading your citation, it appears to me that their is some grey area.

One interpretation can be that if the dog has bitten previously and bites again, they must be removed.

Another interpretation is that no dog may be on the premises that has ever attacked (regardless of when it was).

The problem is the word "previously"

Does it mean it happened before the hearing?
or
Does it mean it happened before the current incident?

Good thinking - appreciate both of your previous posts Tim - thanks for pointing this out!

jim

Hi Kerry - appreciate your response. My guess is that the elderly woman would be satisfied with the muzzle idea. I believe it'd likely be a workable idea...if the wording of our DCC&R allowed some flexibility on this.

Right now, it's mainly our Board members who feel that we should abide by our governing documents - and i believe it'd be a difficult argument to make to advise the Board not to follow its own DCC&R. And of course, seems to like our homeowners would likely question the Board (and rightfully so) if our DCC&R was ignored. What do you think?

Sure do appreciate all of you helping to work through this matter. Very interesting stuff...

oljim, in texas

Matters NOT. The dog BIT. Case closed.

Jim,

You have to do what you think is best for the Association.

As I have pointed out, I believe that the citation can be interpreted differently then one bite and you're out. I suspect that you have also met the animal and know if it's worth seeking a legal opinion on the interpretation.

Either way, you have to do what is best for the Association.

Having the victim contact animal control may resolve the issue for the Association or, at the very least, document the issue for others that the Association may be placing the burden on when the animal is removed from your development.

I do not understand how a leashed dog biting someone is now the fault of the dog owner. Why doesn't the person who got too close to the dog have any responsibility? The leashed area is the dog's safe area, anyone invading that space is on dangerous ground, in my opinion. The owner did what they were supposed to under the rules. Can someone explain what I am missing here?

The owner, or the responsible person walking the dog, is responsible for the dogs actions.

As Jim pointed out, there is a big difference in a 6 foot leash and one that expands to 15 or 20 feet. I have a beagle doxin mix that I walk on an expandable leash. Even though I pay attention, there are times that that small dog can pull the leash out of my hand if it goes after a squirrel.

Regardless of what length the leash is, there is a responsibility to warn others that the dog jumps, is skiddish around people they don't know, is over protective, was previously abused, etc.

All animals can bite and, as you have pointed out, sometimes others fail to realize that.
Typically, when you are walking an animal, unless you are being attacked, any bite to a human is considered unprovoked.

BTW:

I found an interesting link on this topic:

Dog Bite Laws in the United States

If you click on the State, you see the applicable laws.
Keep in mind that this site addresses the State level statutes.
Typically, each County and/or municipality may have additional applicable statutes.

Here is what it says for Texas:

Texas does not have a Dog Bite Statute.

Generally, a dog owner will not be found liable for damages the dog causes, unless the dog is vicious and the owner had actual or constructive knowledge of the viciousness. If the animal is vicious or has aggressive tendencies and the owner has knowledge of that propensity, the owner is subject to liability under the law of strict liability. If an animal is non-vicious, the owner may still be subject to liability for his or her negligence in failing to attempt to end an attack.

Dangerous Dog Statute

A “dangerous dog” is:

a dog that makes an unprovoked attack on a person that causes bodily injury and the attack occurs outside of the dog’s enclosure; or
a dog that commits unprovoked attacks outside of its enclosure that cause a person to reasonably believe the dog will attack and cause bodily injury.

Legal Responsibilities of Dog Owners

Dangerous dogs must be kept in a secure enclosure. The secure enclosure must be a fenced area or a structure that is locked, capable of preventing the entry of the general public, including children, capable of preventing the dog from escaping, and clearly marked as containing a dangerous dog. When the dog is not in the enclosure, it must be restrained at all times on a leash or in the immediate control of a person.
A dangerous dog owner must register the dog with the local animal control authority.
A dangerous dog owner must maintain liability insurance coverage of at least $100,000 to cover damages for bodily injuries caused by the dog.

I'm wondering the same thing. Generally, dogs don't just walk over to a stranger and bite them.

Personally, I think It's up to the town/county to decide what to do, not an HOA. A dog, is part of a family, the hell I would ever let my HOA dictate under what circumstances I would have to remove my pet. Again, I think the actual law needs to be addressed.

I own a vacation/weekend property that's in an HOA. Ours is a house, we own the land. My HOA has no rules regarding pets and that's one of the things they got right. If a dog bites another owner, get the proper authority involved and leave it between the owner and the party that got bit, not the HOA.

Sometimes, boards don't seem to realize where to draw the line. They don't need to get involved or address every.single.issue that will ever arise.
I understand that sometimes they may need to,but when it comes to pets, they better be very careful.
Because if one day, they get an owner like me- this would go to court. If I lost? I would appeal for as long as I could, (I believe state level) and make them spend $$$$ defending their position for years.
There would be assessments, and when you start making home owners pay more, they start voting you out.

But that's me, and that's because I love animals, own two dogs and am heavily involved in rescue. I understand that if a dog bites, it doesn't automatically mean it's vicious or it would happen again. I don't believe most boards have enough experience to make any kind of educated guess when it comes to these types of situations. That's why you have professional/legal agencies that need to be involved.

Michelle, i agree with much of what you have said; however, it seems as though you are recommending that our Association does something other than following the wording of our governing documents. Am i understanding correctly? What do you think?

oljim, in texas

100% agree.
Additionally, that one statement could be a thread of it's own.

That's exactly what I'm suggesting, Jim. You're in a tough spot. Follow your CC&R's, and depending on the dog's owner, get ready for a fight. Forgo, and the other owners may decide to take action.

I just know what I would do, and that would be to work out some kind of agreement between the actual parties involved. THEN- I would make a push to amend my CC&R's.
My HOA has done it three times. When I asked why they were amended, I was told "to reflect the changes in the community over the years." Makes a lot of sense to me.

Also, and this is strictly my opinion as I wasn't there but- the fact that that the lady who was bit chose not to get medical help, is very telling.
Her wound/wounds, while I'm sure painful and unpleasant, didn't require professional treatment. Serious dog bites end in stitches, antibiotics and broken bones. They don't end with the person going home, putting on some neosporin and a band-aid, then calling it a day. Just sayin' ;)

THANK YOU! I didn't read this post before. Bravo, well said.

Ya' know, Jim, that phrase "has previously" could be a way to sentence this dog to a muzzle IF there have been no other confirmed complaints of aggressive behavior from it. Downright removal seems harsh and it's NOT perfectly clear that that's what your docs mean. We get "free" phone calls to our HOA attorney included in our annual retainer. Do you, Jim?

If we take the current violation as "previously" then the dog does have one more chance, it seems to me.

But your board has been made aware of this hazard, which like any other hazard, needs to be dealt with somehow. The muzzle can be one step, a non-expandable leash could be a second. "Probation" for a year, including any confirmed aggressive behavior, e.g. lunging, suddenly turning, baring its teeth and snarling at a person or another pet could be a third, etc. Any of those would get the dog banned.

The rest of your community needs to mind their own business. Usually people with lives have better things to do than "express concern" over things that have never affected them. These types of things never lead to anything good. Reign in that mob mentality now.

JimR24 Tx:
1 Powers to enforce immediate disclosure of vaccination records & animal ownership; possible seizure & impounding.

Whether or not your association already had up to date vaccination records, the immediate powers to seize and/or compel disclosure are usually a quicker local animal control/municipal by-law power etc.

2 You cite that the association is moving to enforce a 10 day removal obligation regardless of # 1.

Respectfully there may be sound reasons to put association's insurer on immediate notice.

Presuming the alleged attack occurred within the common elements, you might try checking Texas association law as to "occupiers liability" if the association is either the owner of the venue or the "deemed occupant" for purposes of owners liability.

Also worth checking exactly what the state & your CCRs specify to be the specific compliancing duty of your association.

Unlikely made a guarantor that there will never be bites nor exuberant injuries etc, but it may have a duty to "obtain compliancing" to whatever the standard eg using reasonable means to obtain compliance.

Dog owners may have a tough time recognizing what Rover is capable of, so reminders may not be overkill eg about controlling your animal, filing proofs of up to date vaccinations if required by governance documents etc

Unprovoked does not mean the dog is at fault. Please give details.

Hi Allison - our President has most of the details here, so at this time, i don't have more specifics. I have been researching out state and county regs about this and have found that the definition of "dangerous dog" given. Since the word "unprovoked" was not defined by state and county regs, i searched what other counties have done. I found the below passage on the Travis County (Austin Texas area) regarding the definition of "unprovoked". Hope this helps.

"DEFINITIONS: (A) UNPROVOKED ATTACK: An attempt by a dog to inflict bodily injury on a person in a situation which the dog was not hit, kicked, or struck by the person with an object or a part of the person's body nor was any part of the dog's body pulled, pinched, or squeezed by the person, nor was the dog taunted or teased by the person.
Consideration will be given to whether the person was in the dog's territory on the property of the dog's owner at the time of the attack (e.g. When the dog is confined to the owners property by rope or chain, or when a dog is defending its young on the property of its owner). If at the time of the unprovoked attack the person was in the dogs territory and the dog was confined then any attack will not be deemed an unprovoked attack."

Interesting information - huh?

oljim, in texas

Allison, it seems to me like the Travis County definition provides a pretty good definition of "unprovoked". Do you agree?

The incident happened on the private streets of our common area. I have recently found out that the elderly woman was walking "on an exercise walk" next to the dog and its owner - with the two talking with one another. The leash was an expandable-type....ummm, not sure of the length those types of leashes expand out. Do you know?

What do you think?

Allison, what would be your own definition of "unprovoked"? What do you think?

jim

Interesting perspective on this incident Allison. So, if i am understanding correctly, if a person is within the leashed area of a dog - there would be no circumstance in which the fault would be placed on any other than the victim....right? In other words, if the victim is within a leashed area - the dog is within its right to bite...correct?

And you are correct, the person who was bitten did not ask for the dog to be removed. She decided to report the incident to the Association to be taken care of under the wording contained in our DCC&R. Sounds like you are saying that - in this incident - that the Association is wrong in following its own governing documents...yes?

Thanks for giving your opinion on this....very interesting stuff.

oljim, in texas