Punish the disobedient owner, not the dog
By David M. Bendoff
Q: There is a dog walking area set up in our association to serve a large number of dogs. Bags and a trash can are provided for disposal of dog waste. The association's rules, and a sign posted at the dog walk area, instruct residents to dispose of dog waste.
One of our owners never does this, and it has become an issue with many other owners. The declaration for our association provides that the board can require an owner to permanently remove a dog from the property on three day's written notice if the dog is creating a nuisance. Can this provision be invoked for what I have described here?
A: It sounds like the dog is doing what dogs do (no pun intended), and that the real nuisance here is the owner who is failing or refusing to pick up the dog waste. The typical declaration includes language that prohibits an owner from engaging in noxious or offensive conduct. In the scenario you have described, I would first suggest the board consider levying a significant fine against the owner for each violation of such a provision, after giving the owner written notice of the violations and an opportunity for a hearing.
The financial impact of fines on the dog owner may be enough to cause him to curb his conduct (pun intended).
Q: The declaration for our association prohibits the parking of recreational vehicles and boats in driveways and requires they be parked in the garage. The board adopted rules that also prohibit the parking of commercial vehicles and cargo trailers in driveways. Are such rules enforceable?
A: Under the 2016 Stobe Illinois appellate court decision, a rule cannot conflict with the declaration. More specifically, if the declaration speaks to an issue (like what vehicles are prohibited), any augmentation or diminution of that provision must be accomplished through an amendment to the declaration, and not a rule promulgated by the board.
If the rule here augments or is more restrictive than the above language of the declaration, it could be challenged based on the Stobe decision.
Under Stobe, if a declaration is silent on a topic, such as what vehicles are prohibited, the board could adopt a restriction on vehicles in its rules.
Q: The governing documents for our single-family homes association clearly allow in-ground swimming pools. The rules and bylaws also prohibit fences, except as permitted by the board. I want to install a pool in my backyard. I submitted an architectural request for a swimming pool and a fence around the pool. The board says it will approve the installation of the swimming pool, but not any fence. Is this proper?
A: Most municipalities have ordinances that require a fence of a certain minimum height around a pool. The board in a jurisdiction with such an ordinance would need to allow the installation of such a fence if the installation of the pool is approved.
Q: Our association's recorded declaration and bylaws call for a three-member board of directors, and allow the owners to increase this number by way of a vote at an owners' meeting. This was done at a recent meeting and reflected in a resolution that was voted on and made part of the owners' meeting minutes. Is there anything else the board should do?
A: Because the declaration and bylaws are recorded, the association should record a document reflecting the change in the size of the board. I have had clients record a copy of the resolution adopted by the owners. This will eliminate confusion in the public record as to the correct number of board members, and should be considered here.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.