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#158-R, Wurz and Heavey v. Kenwood Forest II Condominium (October 7, 1992) (Panel: Hickey, Gordon, Sullivan)

The tenant and his landlord, who was a condominium owner (CO), filed a complaint against the condominium association (CA) alleging that its enforcement of its pet rules was inconsistent.  The CA had ordered the tenant to remove his dog and had ordered the CO to pay a daily fine until the dog was removed.

The evidence at the hearing showed that the tenant moved into the unit in September, 1990, and bought a dog a year later, which weighed more than 20 pounds.  In December, 1991, a neighboring unit owner complained that the dog was causing damage to her unit by its constant running and jumping, and the CA notified the tenant that he must remove the dog within 10 days.  The tenant sent a reply to the CA denying that the dog caused any problem and asking for a hearing.  In January, 1992 the CA notified the landlord CO that he was in violation of the rules by allowing an unregistered dog weighing more than 20 pounds and ordered him to remove the dog or face daily fines.  Thereafter the CA held a hearing on the matter in February 12, 1992, finding that the tenant had violated the rules by having a dog that weighed more than 20 pounds, and it imposed a fine of $5 per day on the CO unless he removed the dog by March 3, 1992; the fines were to be $10 per day beginning April 3, 1992.  The tenant removed the dog on June 27, 1992.

The evidence also showed that another unit owner had a dog that weighed more than 20 pounds, that a neighbor had complained about the noise caused by that dog, and that the CA was taking action against that dog owner as well, but had not ordered the removal of the dog or imposed fines because the complaining neighbor was satisfied with the dog's behavior at that time.  The CA's documents demonstrated a consistent pattern of rule enforcement if it received written complaints.

The hearing panel found that the tenant's dog violated the rules because it weighed more than 20 pounds, but that the CA failed to investigate fully the complaints received about the other dog, and that this failure constituted inconsistent enforcement of the rules.  In spite of this failure the panel found that there was no "pattern or practice" of inconsistent enforcement of the pet policy.  The panel concluded that the CA acted properly with respect to the tenant and his landlord.  The panel ordered the landlord to pay fines of $1020 within 30 days, and it further ordered the CA to consistently enforce its pet rules whenever it received proper notice of an alleged violation.