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Condominium Board Cannot Wink at House Cats

Question: Our association has a “no pet” policy, going back to the developer’s original bylaws. The board has generally enforced it, but has let a few elderly owners keep “indoor cats,” since they really do not bother anyone. My neighbor recently purchased a large dog which barks constantly, keeping me awake at night. I filed a complaint with the manager, who took it to the board, who then took it to their attorney. The word that got back to me is that the association’s hands are tied and nothing can be done about it. What do you think? (A.L. by e-mail)

Answer: This is a bit complicated and will depend on some specific facts. Generally speaking, an association can lose the right to enforce a regulation if it does not consistently do so. The legal doctrine is sometimes known as “selective enforcement,” which creates an “estoppel,” a legal term for the inability to take a particular course of action.

In 2003, a Florida appeals court addressed a similar issue. The association sought to enforce its “fish and bird only” pet restriction against an owner who had a dog. The owner’s defense was that the board permitted cats and that the association was guilty of “selective enforcement.” The association argued that there was a difference between dogs and cats and that the selective enforcement defense should not be recognized.

The court stated: “The fact that cats are different from dogs makes no difference. What does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited” and held the restriction was not enforceable due to the selective enforcement.

Therefore, your board’s hands may well be tied. However, if the association permitted the cats as legally required service or support animals, a different result might apply. Also, if your board at some point issued a “grandfathering notice” and thereafter strictly enforced the “no pet” rule, another exception might exist. Similarly, if the cats were permitted a long time ago but are no longer present and no additional cats have been brought onto the condominium property, there may be some leeway to argue that the provision is enforceable.

I would imagine that your condominium documents also contain a “nuisance” clause, most do. Even if the association is not able to do anything about the presence of the dog, you have the right to enforce the provisions of the condominium documents against other owners. While it is always better to resolve matters of this nature in an amicable manner (and I would recommend speaking to your neighbor first), you could consider a legal approach if the friendly approach does not work. You should consult with an attorney if you choose to proceed in the fashion.

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