My Restricted Dog Breed Story

Hello, I've posted general questions regarding this in the past, but now I am further along in the process and I am desperately asking for people's help and advice.

I'm also interested in any past legal cases related to the topic that people may know of.

Below you will find a short version of events, and a longer version that is "my story". I contemplated sending it to all HOA members but I'm not so sure of that. But when you read it, remember it's from my viewpoint to an intended audience of other HOA members (our HOA consists of 40 condos in 5 buildings).

Here goes...

Hello, I am a fellow owner of a Condo at < location >. I wanted to share my situation with all members of the Home Owner’s Association. I think if you take a few minutes to sit down and read my story you’ll find it informative.

I’d like to give the short version first, for those that are interested in the specifics, the details follow on subsequent pages.

• In January of 2015 I rented my unit to a divorced father and his two sons. He also had a dog that I had seen a picture of.

• On 11-April-2015 I received a letter from the HOA board of a Rules & Regulations (R&R) violation because the dog (claimed to be a pit-bull) was prohibited according to the wording of the R&R and I could be subject to fines of $50 per day.

• I replied to the original notice via email that the dog is not a pit-bull but a mix, and further that pit-bull is not a breed of dog at all.

• On 22-April-2015 I received notice to my reply that fines would commence in 10 days (7-May-2015) if the dog is not removed.

• At the end of April my tenant informed me the if the dog had to be removed he would leave also. I agreed to break the lease with him and refund his deposit. He stated that the dog was in someone else’s care while he looked for a new place to live

• I replied via email to the HOA that the dog had been removed and that I would like to follow the grievance committee procedure regarding the fines.

• On 20-May-2015 I met with the grievance committee and the following week was informed that their decision stands. When I met with the grievance committee I again informed them that the dog was removed.

• On 28-May-2015 I received notice that the board action was upheld and also that the dog must be removed by 15-June-2015. I emailed the board, and again informed them that the dog had been removed.
• On 1-August-2015 I received an invoice. I replied that I was surprised since I had confirmed with the tenant more than once that the dog was removed.

• The invoice was for $50 retroactive to the date of the original letter, a total of $3,250 !

• On 5-August-2015 I inquired to the HOA president why I had been fined and why such an excessive amount. He responded that the dog was seen on 11-July-2015 and since the dog was seen, “as it stands, the dog was on the property until the tenant left”.

• On 19-October-2015 I received the lien on my property for the amount owed.

• After attempting to reach a compromise with the board and receiving no response, I attempted small claims court to resolve the situation. On 27-April-2016 I agreed to dismiss the case due to being out matched by the HOA lawyer, as I had none.

• Today…I still have a fine of $3,250 and a lien on my condo for that amount.

If you would like to continue reading, the specific details follow. Of course this is from my point of view and as they say, there are always two sides to every story. But nothing I am saying is untrue. Maybe there are laws that give HOA’s ultimate power in these cases, so they can say it’s all legal, (“the rules are the rules”) but I am asking people to consider what is fair and to consider how you would like to be treated by your HOA (board) if you were in a similar situation.

The Details

I purchased my condo several years ago after my divorce and wanting to have a nice place for when my 3 children were over on the weekends and a couple of nights during the week. Unfortunately for me, my timing couldn’t have been worse as I bought just before the bottom fell out of the housing market and less than a month before it was discovered that the developer was not going to finish the development.

A lot of you know, but some newer owners may not, that the developer problems resulted in each owner having to pay an immediate $5,000 special assessment to finish landscaping and paving primarily.
After a few years I decided to downsize as my kids were grown and I no longer needed so much space. I tried to sell my unit but with the market being the way it was there was not much hope. So I decided to rent. My first renter worked out quite well, other than the occasional late payment nothing much to complain about. Due to family issues she needed to change locations and asked for assistance getting out of the lease early. Although, it was right in the middle of the holidays, between Thanksgiving and Christmas, I said I would try to find a new renter.

It took nearly a month but I did manage to find a new tenant, starting right at the beginning of the new year, 2015. The individual was a divorced father with two sons, he signed the lease and his mother, a lawyer, cosigned as I was a little worried about his income situation. I admit a couple of failures on my part, being the holidays, I was probably a little rushed/stressed and really just wanted the place rented so I was not making two housing payments. In my rush I did not pay enough attention to his pet. He indicated he had a single dog and that it was well trained and house broken. I did see a picture of it, it was lying next to his son and to me it looked like a mixed breed of some kind.

A couple months later is when I received a letter from the HOA board that I was in violation of the Rules & Regulations because there was a pit-bull on the premises. Also, apparently the tenant was not picking up dog waste from the dog (ugh, I know this is not pleasant especially in the winter since when I lived there my neighbors two doors down had a black lab and in the winter things were not always picked up).

I immediately contacted my tenant and explained the situation. He indicated that he would go pick up the mess and that the dog was not a pit-bull but a mix, some Labrador some “Pit-Bull”. I put “Pit-Bull” in quotes because that is not really a breed at all, but a name commonly given to several breeds. My tenant stated that if the dog has to go, then he would also. We both agreed that he should look for alternate arrangements for the dog and another place to rent – the joys of renting. I did not do this because I believed it was right, but rather the potential for fines from the HOA board was causing the pressure.

In the meantime, and since I wanted to give my tenant some reasonable amount of time to find arrangements for the dog, I inquired about the grievance procedure. There was one and I indicated I would like to try it and pursued that option. It took about a month and a meeting was setup with three members of the association. I received their notification a week later that the board’s ruling stands and that the dog had to be removed by June 15th.

When I met with the grievance committee however, I got the distinct impression that if the dog was removed I wouldn’t be fined at all, much less back to the beginning when the letter was first sent. I told them that the dog had already been removed and the tenant was looking for another place to live.
If you’re not aware, while you are waiting for the grievance procedure and their decision, the HOA board can continue to fine you, on a daily basis. In my case, this was $50 per day.

An interesting item I came across prior to the meeting with the grievance procedure was a posting I found online on a HOA forum. Someone was asking specifically about my case! They quoted exactly our rules and regulations verbatim, and described the situation exactly, including the issue of not picking up after the dog and that I had not followed all the rules for renting my unit (rules for renting, btw, that have since been changed due to concerns about privacy laws). The posting appeared right before my meeting with the grievance committee and disappeared right after the meeting. Way too much to be a coincidence. This person also stated that “they realize that the R&R document obviously has to be changed” in regards to the wording on pets.

By the way, the exact wording from the R&R document states the following:

“The following breeds of dogs are not permitted anywhere on Park Place premises:
Doberman, German Shepherd, Wolf Hybrid, Pit Bull, and Rottweiler.”

So now we are up to May (2015), I am basically stuck at this point, I am trying to do the right thing as best as I can. I was not aware of the dog waste issue until it was pointed out by the HOA board. I did not think I was in violation of the dog rule as written, but yet I broke the lease, the tenant agreed to break the lease and was looking for an alternate place to rent, and the tenant informed me that at some cost to him he was having someone take care of the dog. I lived in < > and did not make trips to verify that the dog was never there and that the dog waste was being promptly picked up.
By July, my tenant had moved out…having heard nothing from the HOA board in all this time I assumed the issue was resolved.

Strangely, and to my shock, I received an invoice from the HOA board on August 1st for the amount of $3,250. Yes, that’s right, $3,250! I was able to contact the board president and ask how this could be and he replied that “since the dog was seen on premises on July 11th, as it stands the dog was not removed” and therefore the fine retroactive to the date of the original letter. Yes, $50 per day, 65 days in all. I tried to reach the board president again via phone and email and got no response.

At this time, I asked my prior tenant if the dog was there. He claimed it was not. I have no way of knowing one way or the other, but to me that really wasn’t the point. From what I was told, the dog was seen one time and for that I am being fined for 65 days. Interesting to note that if one considers that it was actually stated that the dog needed to be removed by June 15th after I met with the grievance committee, that amounts to 25 days.

Also, note that eventually I decided to try small claims court for some relief because I cannot afford to pay this amount. In the small claims case response from the HOA’s lawyer, they now indicate that the dog was not only seen on July 11th but also several other times in May and June. I would ask, if this is the case why was I not informed of this at that time? And why mention the dates before June 15th at all since the dog was allowed to be there until that time.

I do understand, with all the stories in the media regarding “pit-bulls” people have hard views on this topic. And also the issue of not cleaning up after the dog. I’m sure it was very easy to find other owners who were afraid (and annoyed) of/by the animal to be on the grievance committee. But there is nothing in the R&Rs regarding mixed breeds, further we don’t know if the dog was ½, ¼, or 1/8 mix, and no, you can’t always tell by looking at a dog. There is also nothing in the R&Rs regarding having to prove what breed of dog is present.

As an aside, I’ve sensed attitudes for a while that there is a desire to not have owners rent their property. I also belief that the HOA president, , had an issue with me personally (which would be denied and claimed to not be relevant but…) One evening my son had friends come over to visit, high school friends, they drove over behind my garage and tried to make a U-turn to get to the visitors parking area, not able to quite make the turn they got on the edge of the grass which had recently been reseeded and extra dirt put down. It was wet and muddy and made a mess of the blacktop in front of mine and < HOA President's > unit. I believe words were exchanged but I do not know what was said. All I know is when I heard about it later, I grabbed my son and went outside with him and had him apologize for the actions of his friends. was outside talking with a neighbor and having a couple of adult beverages. He was not receptive to the apology and neither was his neighbor friend…so much for my teaching moment to my son.

Interesting situation with my next renter also…They needed to move back to green bay because of parental health issues, again I worked with them to find a replacement renter prior to their lease being up. After they had moved out I was informed the police were stopping because of a complaint. I called the police to find out what the concern was and they stated that someone had complained about dog waste not being picked up. I asked who the complaint came from and it was . The police officer explained that he () had not mentioned it to my tenant and asked him why he didn’t simply talk to the tenant. My tenant was shocked to hear this because she said in general she was very careful about picking up after the dog except maybe once in a while if in a hurry or she didn’t notice. She was also shocked because she said was an excellent neighbor, “why wouldn’t he just talk to me?”…gee, I wonder…

Being at the end of my rope, after trying to reach the board and discuss openly as an attempt for some kind of compromise and being ignored, I have tried the small claims route. Not sure if people are aware of this, but the small claims process is not what most people think. I thought it was my chance to tell my side in more of a mediation type setting, (without having to hire a lawyer). But’s it’s basically no different than any other litigation situation. If you show up without a lawyer and the other party has a lawyer, expect to get nowhere. When I responded to the first question that the judge asked me, the judge asked the HOA’s lawyer if that was correct (the judges interpretation of the law). I was asked two questions from the judge, apparently that’s all he thought was relevant in all my points, and after that he was done with me. Many counties in Wisconsin offer mediation for small claims court, Ozaukee county does not. I was offered a “settlement” from the HOA of paying the FULL amount. I was stunned and left the court very frustrated with the legal system and my home owners association’s representatives.

It all feels very surreal to me, sometimes I think it has to be a bad dream and I’ll wake up and it’ll all be over. Unfortunately, that’s not the case. There is no compromise, there is no understanding that I did the best I could to fix the situation. There is no consideration for the ongoing relationship between the HOA board and its members. There is nothing neighborly or kind or forgiving about it.

I’m not sure what my next steps will be, the small claims case is dismissed. I may consult with another lawyer and see what my chances would be in a full trial. If I lost, I would likely be required to pay the legal fees of the HOA. On the other hand, if I won, the HOA would likely have to pay my legal fees.

I wonder what most HOA members think about the potential impact to the HOA budget and if it was worth the risk considering the situation.

I’d really be interested in other HOA member’s feedback on this issue, good or bad. I don’t have much interaction with other members because of my location and now that I am renting my unit. I would welcome any such feedback via phone or text (< removed >) or email (< removed >).

Add the fact the HOA liens for unpaid dues not fines... (Unless they do some kind of creative accounting). This situation did not need to escalate as far as it did if you had educated yourself on a few thing. Don't be intimidated by court or lawyers. It's your right to appear in court and lawyer's only do what their clients ask them to do. Doesn't mean it's the right thing or other options aren't available.

Varies by State.

Also, most Associations will apply payments to charges first and annual assessments second.

Scott,

Your earlier thread did not go into the details of the issue. Only that you wanted access to Association documents because you felt that fines were being applied selectively vs. by policy.

Thank you for the update.

First question, was the dog living there, or was it visiting daddy and the kids? You may need to get a truthful statement from the tennent. I would offer him indemnification from any costs (namely from you) in order to fight the HOA. He will probably also tell you if you have a leg to stand on. If he was in fact lying to you, you're SOL.

If he's dumb, he may tell you the whole truth without any inducements. I would not, but he may. But he should be concerned that if he tells you the truth, and he was in fact lying about the dog, that you could have a claim against him, but I would think that would be a legal long shot, contractually, by statute (law and code) and by statute of limitations

On this forum, posters tend to use the term "small claims" to describe any court of limited jurisdiction.

In my state there are justice courts with limited jurisdiction and within the justice courts are small claims courts with even more limitations. The rules within the small claims division are that neither party may have an attorney. But one cannot be forced to defend himself if wishes to be represented, so he may file a motion with the court to transfer the case to the regular justice court. I do not know if that is the case in other states but that is the way it works here.

Good points. If he paid it he would have to explain why he paid something he did not owe.

Essentially what he was seeking was a declaratory judgment. I my state that requires going into superior court; lower courts have no jurisdiction to render a declaratory judgment.

Idiocy of breed restrictions aside, did the HOA ever provide proof that the dog in question was actually a restricted breed, or were they basing that on a subjective visual assessment?

Seems to me like the HOA has no tangible evidence that a restricted breed was ever on the premises.

Heavy handed, non-responsive board threatening and levying huge fines.
Renter statement the the dog is a lab mix
There being no such breed as a "pit-bull" and no evidence that the dog was any breed commonly referred to as a pit bull.

I'd rule in favour of the owner every time in a case like that.

I say sue the HOA and recover attorney fees as well.

ScottJ6 Wisconsin :
You would NOT be the first owner victimized by unsupported allegations or oppressive misuse of lien & enforcement powers. But with respect, it isn't at all clear that such is the case here.

1- What you candidly described as your 'rushed' tenanting in Jan 2015 brought into the community a tenant's dog that is claimed by those who saw it as having ENOUGH Pit Bull components that there was concern. You candidly admit that you yourself are not one of those who personally saw that dog.

I presume that Wisconsin snow had melted enough that you could have inspected the leased unit and personally seen/photographed etc that dog by prior notice on ANY day of the rest of the months of occupancy after the condo Board's April 11/15 Notice.

You commendably engaged in some form of resolution process thereafter with the Board.

But you neither viewed the animal nor arranged to have at least a veterinary opinion ( or other ) in the absence of anyone's future gene mapping as to aggression genes (if they exist at all) .

Whatever evidence gathering you did beyond relying on the dog owner ( ! ) without ever seeing the dog yourself in person or photographing it, it didn't cut it in April 2016 in civil court.

2 - Without paying to discharge the condo lien, you say you instead sought civil relief from that lien.

But unless your application was dismissed Without Prejudice, it is likely that you will not get a second chance to refile.

Unless your Board is made up of Amish or Quakers, I would also be surprised if they don't add the legal expenses incurred to defeat your civil action. And interest including whatever built into the lien document.

3 - Your material above is articulate, but I respectfully hope you have taken a VERY close look at Wisconsin's condominium law, if it applies to your community.

Wisconsin ch 703 Condominiums http://docs.legis.wisconsin.gov/statutes/statutes/703
703.24  Remedies for violations by unit owner or tenant of a unit owner.
703.165  Lien for unpaid common expenses, unpaid damages

Notice that condo liens are enforceable against your unit like a mortgage, with a timeliness deadline to enforce apparently of 3 years.

4 - Re3covery from the tenant ? Your Lease with your 2015 dog-owning tenant may/may not have included a provision by which that tenant agreed to indemnify you for losses etc.

Whatever the situation, enforcing that from the long departed tenant may be far from easy, including as you have argued that the fines etc are unsupportable. Recourse against the dog owner may itself have timeliness deadlines unlikely to be missed by his lawyer mother either.

5 - A general circular now to other unit owners ? You are better placed to know how the other unit owners would view your well written circular. And what would they do ?

With the greatest respect and never having seen what could be a harmless family pet, I myself would have concerns as a parent or dog owner about that animal which you have not seen personally.

Ten years ago my own jurisdiction banned new breeding of the unrecognized Pit Bull combinations. Like other dog owners I was very skeptical, including the Nurture v Nature debate & gene-mapping issues. However visible Pit Bull indicators ( other than the legit CKC/AKC source breeds ) have largely disappeared from the streets here ( Injury statistics now point to next on the danger lists before the ban. Missing are the wild mayhems of a pain insensitive fighting machine sometimes with no Off command. )

So in subsequent years I have changed my mind about trying to ban that Pit Bull mix.

If I got your circular myself, I might be more concerned about the condo corporation's legal defence costs than some absentee landlord's rights to platform a possible Pit Bull without its poop being cleaned up.

But good luck.

Dave D3 Well actually ScottJ6 already has the only answer that counted, and of course NOT our answers: : with or without Scott having counsel counsel a civil court may have upheld a "seat of the pants" eyeballing on behalf of the condo corporation. Maybe not too far from "that dog just scares us" or "we deem that animal a nuisance" etc.

Who knows what sort of evidence the court heard from the condo corporation's counsel ?

Whatever it was, a judge or arbitrator would already have been in an environment that hears from victims or witnesses relating a recurrent nightmare. In that nightmare, high degrees of pain tolerance & aggression might not be halted short of almost killing Pit Bull mixes, whatever they are. Notice how Scott describes his day in court ?

Maybe he may now hire a professional for an appeal. Doggy & tenant owner may be long gone.

PS the qualifications just for the record, not veterinary nor gene-mapping but include post retirement condo management of +700 condo units and later 3 years of running several housing communities. Plus decades of legal research before & afterwards. Plus as a dog owner myself I have had a decade of getting my head straight about risk reduction from a ban on breeding what gets labelled - junk science or not - as Pit Bull mixes.

ScottJ6 had the chance to get the dog to a veterinarian or someone with AKC credentials but apparently didn't bother enough to do that much less inspect