VIEWS: 4 PAGES: 30 POSTED ON: 10/4/2012
A Pets & Housing sect i o n 1 Pets Within A Lease ................................................................ A 2 sect i o n 2 Defenses Available to Tenants ............................................... A 7 sect i o n 3 Tenant Defense of Federal Rights .......................................... A 8 sect i o n 4 Condominiums...................................................................... A 13 sect i o n 5 Subdivision Covenants ........................................................ A 18 A 2 Animals: Welfare, Interests, and Rights Wherever humans live, the issues of animals follow them. Humans in the United States have three primary categories for where they live. Herein is considered the renter and the landlord, the condo owners and the association, and the subdivision owner and property owners association. Section 1 Pets Within A Lease There is no disputing that the possession of pets by tenants is an appropriate topic for inclusion in a lease agreement. Unless the lease states otherwise, a tenant has a right to keep a pet in the dwelling, since the pet is the personal property of the tenant. The owner or possessor is liable for any injury or damage caused by the pet. In addition, a pet that is a nuisance or a public-health hazard may put the tenant’s possession at risk. The landlord and tenant may negotiate any appropriate conditions for the presence of a pet. Often a separate pet agreement may be signed that states the responsibilities of the tenant and which may or may not provide for an additional monthly rental fee. Other possibilities are to limit the number or the type of animals. One lease prohibited pets that are required to be let outdoors. In the most common situation, a pet lease-provision is not specifically negotiated be- tween the parties. Rather, the lease will have a “no pets allowed” provision, which may or may not be read by the tenant because the tenant does not perceive the terms to be negotiable. In the alternative, a prohibition against pets may be in the rules and regulations of the building, which are often a document separate from the lease. The only tie between the two is a provision in the lease under which the tenant agrees to abide by the “rules and regulations of the building” (this format is often used in hous- ing cooperatives). Although not documented, common experience suggests that the “no-pet provision” may be one of the lease conditions most often violated by tenants. Tenants with knowledge of a no-pet provision may decide that the immediate benefits of a pet outweigh the risk of future enforcement actions by the landlord. Legal issues most often arise over dogs that tenants possess contrary to the lease pro- visions. (No recorded cases of landlord-tenant disputes over fish, birds, or hamsters could be found; very few with cats.) While in some situations the landlord may not learn of the violation, usually some neighbor complains of the noise, odor, or mess made by the dog, and the landlord takes action, demanding the removal of the pet; the tenant then refuses, the landlord threatens legal action, and then finally sues. Assuming the lease has, in fact, been breached by the tenant, the first question is what remedies are available to the landlord. The breach of a covenant (not to have pets) gen- erally gives rise to an action at law by the landlord for damages, for injunctive reliefor for termination of the lease pursuant to a forfeiture clause.For the forfeiture remedy to be available, it must be expressly provided for in the lease (e.g., “the violation of any provision herein or any of the attached rules and regulations shall give the land- lord the option of terminating this lease”). In addition, the landlord will have to meet any statutory prerequisites before the unlawful detainer actions (quick ejectment) are available. For example, in New York the landlord must show the provision in question to be one of a “substantial obligation.”Because of the harshness of the forfeiture provi- sion, several New York decisions have given the tenants a grace period during which the pet may be removed and the tenancy retained. A: Pets & Housing A 3 Although trial courts have sometimes held for the tenant, the appellate courts, New York in particular, have consistently held for the landlord. The issues are perceived strictly in contract terms: if the provision is present, it will be enforced. Why landlords should be allowed to impose such absolute prohibitions in the absence of negotiation of terms is never really addressed. Perhaps it is because the benefits of pets to their owners are considered a luxury in the minds of judges, and therefore of minimal con- cern when set against the potential for disturbance to other tenants. But, given that many jurisdictions still allow leases prohibiting children, prohibitions against pets should not be expected to fare any better. There is a growing body of science-based evidence that the mental well-being of many individuals is enhanced by the presence of pets. This is particularly true among the elderly and disabled, who may lack family support and physical independence. In recognition of this fact, California passed a law in 1981 that allowed public housing tenants over the age of 60 to keep up to two pets. In 1989, the District of Columbia passed a law that prohibited locally assisted housing accommodations for the elderly or handicapped from discriminating against tenants who wish to possess pets. Under federal law, housing projects receiving federal support may not discriminate. In the future, courts should be more willing to recognize, as a matter of public policy, the benefits that tenants obtain in keeping pets. In the absence of a negotiated provi- sion in a lease, the presumption should be that a no-pet provision is void as a A Focusing Question matter of public policy, unless the land- Should anyone who does not like to confront lord can prove unusual and justifying animals be forced to do so by a neighbor’s reasons for the prohibition. Of course whim? the landlord will always be able to control nuisance activities by animals and seek extra deposit money to guard against damages to units by pets. (For case citations to the above materials see, David Favre and Peter Borchelt, Animal Law and Dog Behavior, 81-83 (1999).) Case by Case Young v. Savinon 492 A2d 385(NJ 1985) Judge Dreier Defendants appeal from a decision of the Special Civil Part enforcing a “no pets” pro- vision in defendants’ renewal leases. Defendants had been tenants in plaintiff’s apart- ments prior to his acquiring title. Their earlier leases did not prohibit pets, but upon renewal after plaintiff’s purchase, the leases contained a new “no pets” provision. At issue before us is whether under the facts of this case the “no pets” provision should be sustained. The trial judge found herself bound by Terhune Courts v. Sgambati, 163 N.J. Super. 218 (Cty.D.Ct.1978), aff’d o.b. 170 N.J. Super. 477 (App.Div.1979), certif. den. 84 N.J. 418 (1980), and upheld plaintiff’s right to dispossess defendants unless they removed their dogs. At the time of the trial in 1982, defendant Possumato had been residing in the prem- ises with her daughter, now a teenager, for six years and had brought her dog with her when she moved in. She had owned the dog four years at that time, and thus the dog must now be 12 to 13 years old. The wife of defendant Savinon had lived in their A 4 Animals: Welfare, Interests, and Rights apartment for only a year at the time of trial, but had owned the dog for some time prior to moving into the apartment. The dog is now between 12 and 13 years old. The dog is her constant companion and her attachment to the animal is also partially due to the fact that it had belonged to her sister until her sister’s death. The third defen- dant, Mrs. Brosonski, first lived in the apartment in 1973, and as of the time of trial had lived there for 8 of the past 9 years. Her dog also is between 13 and 14 years old. The dogs are respectively a German shepard, a Scottish terrier and a Chihuahua. Testimony established that the premises are located near warehouses, which are unoc- cupied at night, and that there are bars in the area. People are known to “hang out” around the building at night; drunks often throw beer bottles or fight at night in the alleyway near the premises, waking up the tenants; the tenants have also experienced attempted break-ins. The entrance door to the building has been forced open, and one year prior to the trial a man had been stabbed to death in the building. Both the defen- dants and other tenants testified that the presence of the dogs make all of the tenants feel safer, since they give warning when strangers approach. Prior to plaintiff’s purchase of the building, the landlord imposed no condition pro- hibiting pets, and defendants all moved in with their pets with knowledge of former landlord’s policy. In December 1981 when plaintiff purchased the premises he was aware that five animals were maintained in the twelve unit apartment house. Plaintiff, who is afraid of dogs, admits purchasing the premises with the intention of forcing the tenants either to get rid of their pets or move. None of the dogs belonging to the defendants has been the subject of any but the most minor complaint by another tenant or by the prior or present landlord. None of the dogs is permitted out of its apartment unattended. At the trial defendants presented testimony by Dr. Aaron Katcher, an Associate Pro- fessor of Psychology at the University of Pennsylvania and a specialist concerning the influence of companion animals on the mental and physical health of their own- ers. His testimony established that the loss of their pets to people such as defendants would cause significant health problems, especially if the loss is due to a defendant being forced to give up his or her pet as opposed to the pet’s dying a natural death. Defendants could be expected to suffer grief and depression as great as that suffered at the loss of a family member and, in addition, suffer from a sense of guilt and loss of self-esteem. On a positive note, the witness testified to studies showing that the presence of a pet lowers blood pressure, decreases anxiety, combats depression and generally increases the owner’s health. In fact, the presence of pets generally lowers the rate of mortality. As to Mrs. Savinon, and defendants Possumato and Brosonski, Dr. Katcher testified that one would be increasingly unwilling to leave her home, an- other would suffer a worsening in her cardiovascular system and increased hyperten- sion and the third would experience severe grief, especially since this woman would not only grieve for the loss of her dog but suffer a reawakened grief for the loss of her sister, the dog’s former owner. He expected that if these women were forced to choose between giving up their pets or moving, they would feel forced to move. This case was tried twice. After the first trial the complaints were dismissed on proce- dural grounds. In the second trial it was stipulated that the testimony initially taken could be considered by the judge who, on April 20, 1983, granted judgments for pos- session against the three defendants. A stay was entered pending this appeal. Prior to the enaction of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., a landlord had the right to refuse to renew a lease for practically any reason, other than a ba- A: Pets & Housing A 5 sis that would be in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The Anti-Eviction Act, however, limited the causes for eviction and required that landlords be “reasonable” in their relations with their tenants insofar as placing re- strictions upon a tenant’s activities. These restrictions could be placed in the rules and regulations promulgated by the landlord, N.J.S.A. 2A:18-61.1(d), in the lease cov- enants themselves, N.J.S.A. 2A:18-61.1(e), or in changes in the terms and conditions contained in a renewal lease, N.J.S.A. 2A:18-61.1(i). These sections all require, how- ever, that the provisions be “reasonable.” The court in Terhune Courts v. Sgambati, supra, assumed that an outright ban on pets was reasonable, citing Housing Auth., Atlantic City v. Coppock, 136 N.J. Super. 432, 435 (App.Div.1975). As has been recently explained by us in Royal Associates v. Concannon, 200 N.J. Super. 84, 90-91 (App.Div.1985), the discussion in the Atlantic City case was dictum and was also stated as an assumption without an analysis of the impact of the statement in the particular case. Likewise, in Terhune Courts, the court assumed that it was bound by a prior appellate determination that a “no pets” provision was rea- sonable, irrespective of the facts. The court there also reasoned that it was limited to assessing the agreements of landlord and tenant during only the current term of the lease, without reference to any agreement concerning their continuing relationship. 163 N.J. Super. at 222. The fallacy in that argument can be demonstrated by assuming that a landlord made a promise at the commencement of the first lease that a tenant would be charged 80% of the rental charged to the other tenants for the same size apartment for so long as the tenant remained at the premises. If after a few renewals of the lease at such rate the landlord determined to charge the tenant the full rental, contending that any agreement to the contrary had been made during the term of a prior lease and, therefore, terminated with the end of that lease, would a court permit such repudiations? We think not. A landlord may make an abiding agreement outside of the lease that is intended to transcend the provisions of individual leases, and which may be enforced. The tenant, of course, must carry the burden of proof and demon- strate that the separate agreement was made. In Royal Associates v. Concannon, supra, we found an express contract, not denied by the landlord, that the tenants could keep their dog so long as they controlled it. The tenants had satisfied their commitment, and the landlord was estopped from enforcing the “no pets” provision of the lease during the lifetime of the animal so long as the tenants continued to comply with their agreement to control it. In the case before us, the prior land- lord rented the apartment to tenants A Focusing Question knowing they possessed dogs. Given Should anyone who does not like to confront the ages and family situations of the animals be forced to do so by a neighbor’s tenants it was reasonable to expect that whim? the tenants would be attached to their animals. Agreements between the landlord and tenant need not be in writing nor even be expressed in words. Enforceable agreements also may be implied in fact from the conduct of the parties. St. Paul Fire & Marine Co. v. Indem. Ins. of No. America, 32 N.J. 17, 23 (1960). If the prior landlord by his actions bound himself to permit the contin- ued possession of these animals by their owners and this implied contract also tran- scended the term of the then-current lease, the former landlord could have conveyed to his transferee no greater rights than he possessed. Carteret Properties v. Variety Do- nuts, Inc., 49 N.J. 116, 127-128 (1967). This is not a situation where a purchaser without notice cannot be bound by unrecorded outstanding rights to real property. Palamarg Realty Co. v. Rehac, 80 N.J. 446 (1979). In this case the purchaser was aware that the A 6 Animals: Welfare, Interests, and Rights Anti-Eviction Act permitted only reasonable changes in the lease terms or a landlord’s rules or regulations, and that the premises were subject to that Act. Plaintiff also was familiar with the then-current tenants, that these defendants possessed dogs and that their possession of the animals was not in violation of any term of their leases. This is not to say that a landlord may not validly prohibit pets in rental premises owned by him. The only blanket exception to this right is contained in N.J.S.A. 10:5- 29.2 governing guide dogs for a handicapped, blind or deaf person. The issue here, however, is whether the prohibition shall operate retroactively to force the removal of pets already owned by tenants in a situation where there was no lease violation when the pets were acquired. In Terhune Courts and in the trial court’s opinion here, the trial judges determined that the test of reasonableness was to be applied solely to the landlord’s interest. In the context of the Anti-Eviction Act the term applies to the lease provision, not the landlord’s or tenant’s sole interest. Since the “no pets” provi- sion may be enforced in a summary dispossess or declaratory judgment proceeding, if a tenant claims special circumstances, the reasonableness of the prohibition relating to both the landlord and the tenant in his or her particular circumstances should be inquired into by the court. The tenant may be able to show a waiver or estoppel. See Royal Associates v. Concan- non, supra. See also Jasontown Apts. v. Lynch, 155 N.J. Super. 254 (App.Div.1978), where the reasonableness of the “no pets” provision was stipulated, but the tenant was en- titled to a hearing to determine in the circumstances of that case if the provision had been waived. Accord Shannon & Luchs v. Tindal, 415 A.2d 805 (Ct.App.D.C.1980); Doerr v. Maher, 337 Ill.App. 245, 85 N.E.2d 363 (1949); see also Ocean Gate Associates Starrett Systems, Inc. v. Dopico, 109 Misc.2d 774, 441 N.Y.S.2d 34, 35 (Civ.Ct.1981) (where the dog was needed to afford protection to a handicapped owner and thus the “no pets” provi- sion was unenforceable) and Majors v. Housing Auth. DeKalb Cty., 652 F.2d 454, 458 (5th Cir.1981) (where it was alleged that the mental deficiency of the tenant required the companionship of a dog and the case was remanded for a factual determination to see whether the “no pets” provision would be enforced). In the case before us there was extensive psychological testimony concerning both the bonding between the defendants and their dogs and the adverse effect to the tenants if the provision were to be enforced against them. This testimony stood unimpeached. The trial judge determined that she could not consider the reasonableness of the “no pets” provision from the standpoint of the tenants under Terhune Courts, 170 N.J. Su- per. at 222. She correctly found that she was bound by prior appellate authority. We now Think About It find, however, that such statement of the law Landlord was ejecting a tenant who in Terhune Courts was in error. was unable to leave by the court- created deadline. Landlord had all Rather than remand this matter for recon- the personal property of the ex-tenant sideration by the trial judge, we will exercise cleared out of the house by putting our original jurisdiction under R. 2:10-5 and it in plastic bags out on the curb as render a complete determination of this mat- abandoned property. (This would be ter. Based upon the factual testimony and the lawful in most jurisdictions.) But among psychological expert’s opinion, and consider- the property in the plastic bags was ing the conduct of the prior landlord known their live large cat, also their property. to the plaintiff, we find that it would be un- A neighbor found it before it died. reasonable to enforce the “no pets” provision Reported to editor, Animal Legal and with respect to the defendants and their pres- Historical Web Center (Dec 17, 2005) ent pets. Through attrition, defendants’ apart- ments will be brought into compliance. A: Pets & Housing A 7 By this determination, we should not be misunderstood as avoiding all “no pets” provisions in leases. Such provisions have been found reasonable from a landlord’s point of view and should be enforced unless the landlord has expressly or impliedly permitted particular pets to be maintained, is otherwise estopped from enforcing the provision, or if a tenant who had previously been allowed to maintain a pet upon the premises can show that it is unreasonable to enforce the provision under the particular circumstances of the case before the court. The judgments of possession appealed from are reversed and the complaints are here- by dismissed. Questions & Notes 1. Is it fair that the landlord is stuck? 2. Does it make any difference whether the landlord had actual knowledge of the presence of the pets? Section 2 Defenses Available to Tenants One possible defense to a tenant for a landlord’s demand to remove the pet is that such an act constitutes unlawful discrimination against a handicapped tenant. If a person by reason of a handicap has need of a pet or animal assistant then the land- lord may not use the presence of an animal as a basis for ejectment of the tenant. This would clearly apply to seeing eye dogs. In two cases mental illness was asserted as the handicap and the possession of a cat was argued as a necessary remedy (Whittier Terrace Associates v. Elisabeth Hampshire, 532 NE2d 712, (MA 1989)). There is a long series of arguments that various tenants have presented in defense of their violation of the pet prohibition; to date, most of them have failed. Often the arguments revolve around the concept that the landlord, by his actions, has waived the enforceability of the lease’s pet provision. A waiver is defined as an intentional relinquishment of a known right, and is thus a question of fact for the jury to decide. It must be found that the landlord has acted in such a manner that it would be unfair to permit him to enforce the covenant against pets. A number of factors go into the deci- sion of whether or not a waiver is present. One case allowed the defense when a prior landlord had allowed pets and a new landlord imposed the no pet provision. Problem A=1 In 1995 Hardluck rents an apartment from Giant Corp. for $1,000 per month. It is a large apartment (unit #40) which shares a beautiful garden with 45 other units. The lease has a one-line “pets are prohibited on the premises at all times” provision. In 1997, Hardluck’s girlfriend gives him a toy poodle for Christmas. (A toy poodle can sit in the cupped hands of an adult male human.) The lease is a six-month periodic tenancy. A 8 Animals: Welfare, Interests, and Rights In the alternative: 1. Two days later the manager of the rental units, Boss, sees the poodle, and two days following this gives written demand that the poodle be removed from the apartment. Hardluck argues that there is no reasonable basis upon which a landlord could object to a toy poodle. What result? 2. During the winter, Boss is informed by three tenants that they saw a black poodle in the garden and thought it was very cute. Boss becomes aware the Hardluck is the owner but does nothing. In October of 1999, Boss sends Hardluck a letter demanding the poodle be removed from the premises. What are Hardluck’s best arguments, and will he win? 3. It is generally know that the renter in unit #2 has a white cat, and that unit #33 has a German Shepard. Boss does not like the high-pitched yapping of the poodle and sends a letter only to Hardluck demanding the poodle be removed. What are Hard- luck’s best arguments? Will he win? Problem A-2 You are the attorney for a landlord who is willing to allow tenants to have pets, but only under two conditions: (1) that the pet pose no threat to other tenants, and (2) that the landlord incur no extra cost for the pet’s presence. Please draft a lease provision that could be used for dogs and another for birds. Section 3 Tenant Defense of Federal Rights Case by Case Crossroads Apartments Associates v. Leboo 578 NYS2d 1004 (NY 1991) Hon. John R. Schwartz Rochester City Court Judge In this summary proceeding, the landlord/petitioner, Crossroads Apartments Associates, a federally assisted apartment complex (hereinafter referred to as Crossroads), seeks to evict its tenant/respondent, Kenneth LeBoo (hereinafter referred to as LeBoo). The sole basis for this eviction proceeding is that LeBoo is in possession of a cat in violation of the terms and conditions of a written lease. In particular, Rule 8 of that lease states that: “No dogs, cats or animals of any kind shall be kept or harbored in the apartment for any period of time.” LeBoo answers affirmatively that he is a handicapped person as defined by § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and its implementary regulations, 24 C.F.R. § 8.1, et seq. and as defined by the A: Pets & Housing A 9 Fair Housing Amendment Act of 1988, 42 U.S.C.A. § 3602(h) and its implementary regulations, by virtue of his mental illness. LeBoo further alleges that he requires the companionship of his cat to cope with his mental disability, and that Crossroads is unlawfully discriminating against him by at- tempting to enforce its ban against cats in its apartments. Finally, LeBoo affirmatively pleads that Crossroads is estopped from enforcing its “no pet” rule because other ten- ants have pets and therefore, Crossroads has failed to uniformly enforce its prohibi- tion. Factual Background The tenant, Kenneth LeBoo, is a forty-nine year old male with a long history of mental illness dating back to the late 1960’s. His mental condition has been diagnosed as pan- ic disorder with agoraphobia, mixed personality disorder, and chronic anxiety with a history of episodic alcohol abuse. The landlord, Crossroads, is an apartment com- plex located within the City of Rochester, New York, which consists of 518 residential apartment units. 496 of these apartment units are subject to a federally-funded Section 8 Housing Assistance Payment Contract. LeBoo has been a tenant since 1978, pursuant to a written lease and receives Section 8 assistance. No real problems existed between the parties until LeBoo obtained the subject cat in the spring of 1990. Mr. LeBoo al- leges he acquired the cat to help alleviate his intense feeling of loneliness, anxiety and depression, which are daily manifestations of his mental illness. Upon discovering the cat in LeBoo’s apartment, Crossroads commenced the instant proceeding. After brief discovery, both sides now move for summary judgment. LeBoo alleges that he is a handicapped person and falls within the protection of Section 504, of the Rehabilitation Act of 1973, 29 U.S.C. § 794. He is asking this Court to determine as a matter of law that he needs the cat in order to fully “use and enjoy” his apartment and wants the landlord enjoined from evicting him. The landlord alleges, on the other hand, that New York law enforces “no pet clauses” as a matter of public policy and that, as a matter of law, Mr. LeBoo’s disability does not necessitate that he keep his cat to be able “to use and enjoy his apartment” (see 24 C.F.R. § 100.204(a)). I. New York Courts have long recognized the validity of “no pet clauses” in leases, and haboring a pet when a lease contains a “no pet clause” constitutes a substantial breach of the lease agreement (Knolls Cooperative Section No. II v. Cashman, 14 NY2d 579; Kings- view Homes Inc. v. Jarvis, 48 AD2d 881; Lincoln Cooperative Apts, Inc v. Zaifert, 23 AD2d 796; East River Housing Corp. v. Matonis, 34 AD2d 937; Pollack v. J.A. Green Construction Corp., 40 AD2d 996). Acceptance of the rent over a period of time after discovery of the pet still does not render the “no pet clause” unenforceable (Riverbay Corp. v. Klinghoffer, 34 AD2d 630). Landlords may also selectively enforce the “no pet clause” (Megalopolis Property Assoc. vs. Buvron, 121 Misc 2d 62; 1036 Park Corp. v. Rubin, 92 AD2d 452; Trump Village Section 3, Inc. v. Moore, 84 AD2d 812). However, New York Courts to date have not dealt with the issue of “no pet clauses” with respect to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In fact, this Court can only find two recorded decisions in the country that have dealt with this issue. (see Majors v. Housing Authority of City of DeKalb, GA., 652 F.2d 454 (5th Cir 1981) and Whittier Terrace Assoc. Hampshire, 26 Mass. App. 1020, 532 N.E. 2d 712 ). Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 states: A 10 Animals: Welfare, Interests, and Rights No otherwise qualified individual with handicaps … shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or actively receiving Federal financial assistance. The Fair Housing Amendments Act of 1988, 42 U.S.C.A. § 3604(f) (1) & (2) makes it unlawful for any housing provider covered by the above act: (1) [to] discriminate in the … rental of, or to otherwise make unavilable or deny, a dwelling to any … renter because of a handicap of that renter. (2) to discriminate against any person in the terms, conditions or privileges of … rental of a dwelling … because of a handicap of that person … The Fair Housing Amendment Act of 1988 and the regulations of the Department of Housing and Urban Development define discrimination to include a refusal “to make reasonable accomodations in the rules, policies, practices or services, when such acco- modation may be necessary to afford such person equal opportunity to use and enjoy a dwelling …“ (42 U.S.C.A. § 3604(3); 24 C.F.R. § 100.204). Therefore, this Court must first decide as a matter of law whether LeBoo may seek protection under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in view of New York’s position that a “no pet clause” is enforceable, even selectively (Mega- lopolis Property Assoc. v. Buvron, 121 Misc 2d 662; 1036 Park Corp. v. Rubin, 92 AD2d 452; Trump Village Section 3 Inc. v. Moore, 84 AD2d 812). Here, there is no question that petitioner, Crossroads, is a federally funded project. 496 of its 518 units are subject to a federal so-called Section 8 Housing Assistance Payment Contract. Respondent, LeBoo’s, apartment unit is covered by the Section 8 contract. Therefore, Crossroads leases, rules and regulations must comply with applicable fed- eral statutes, rules and regulations. As such, this Court will hold as a matter of law that Section 504 applies to this claim and the tenant has the right to plead a Section 504 violation as an affirmative defense. In the same vein, however, this Court will dismiss the tenant LeBoo’s affirmative de- fense of “estoppel” on the grounds that New York law recognizes and enforces “no pet clauses” even where the landlord chooses to selectively enforce such clauses. II. LeBoo further urges this Court to determine as a matter of law that he has established that Crossroads has violated Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Amendments Act of 1988. To support his claim, he submits three expert affi- davits which state that LeBoo’s cat is necessary for him to use and enjoy his apartment (29 U.S.C. § 794; 42 U.S.C. § 3604(3)(B); 24 C.F.R. § 100.204 (1991)). Crossroads, on the other hand, urges this Court to determine as a matter of law that LeBoo has not established even “prima facia” the necessity of his cat to assist him in coping with his mental illness. They also submit an affidavit of a psychiatrist. To prove that Crossroads has violated both acts, LeBoo must demonstrate that: 1. he is handicapped; 2. he is otherwise qualified for the tenancy; A: Pets & Housing A 11 3. that because of his disability, it is necessary for him to keep the pet in order for him to use and enjoy the apartment; and 4. reasonable accomodations can be made to allow him to keep the pet. (see Doc v. New York University, 666 F.2d 761 (2d Cir. 1981); Prowitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981); Majors v. Housing Authority of City of DeKalb, GA., 652 F.2d 454 (5th Cir. 1981); Whittier Torraco Assoc. v. Hampshire, 26 Mass. App. 1020, 532 N.E.2d 712 (1989)). First, LeBoo is a handicapped person. There is no dispute about that factual issue. Both parties’ doctors diagnose him as having a mental illness that makes him disabled. Second, he is an otherwise qualified person for tenancy except for the pet. “An other- wise qualified person is one who is able to meet all of the program’s requirements in spite of his handicap” (Southeastern Community Coll. v. Davis, 442 U.S. 397, 406 (1979)). LeBoo had lived at Crossroads twelve years without incident before he obtained his pet. Clearly, he meets all other criteria for tenancy, if not for the pet. Third, LeBoo must prove that the pet is necessary for him to use and enjoy his apart- ment (Majors v. Housing Authority of City of DeKalb, GA, 652 F.2d 454 (5th Cir (1981); Whittier Terrace Assoc. v. Hampshire, 26 Mass. App. 1020, 532 N.E.2d 712 (1989)). To pre- vail on this issue, LeBoo must demonstrate that he has an emotional and psycho- logical dependence on the cat which requires him to keep the cat in the apartment. To support his claim, LeBoo has submitted the affidavits of his treating psychiatrist, his clinical social worker, and a certified pet-assisted therapist. They all describe his mental illness, his course of treatment, and conclude that LeBoo receives thereapeutic benefits from keeping and caring for his cat. Also, they conclude that the keeping of the cat assists him in his use and enjoyment of his apartment by helping him cope with the daily manifestations of his mental illness. In opposition, Crossroads submits the affidavit of their psychiatrist who has seen LeB- oo twice, examined all his relevant medical records, and concludes that there is “no significant clinical evidence that the cat is necessary or required for LeBoo to be able to fully use and enjoy his apartment.” He further concludes in his report that LeBoo was placed on the drug Prozac around the same time he acquired the cat and LeBoo’s clinical course since taking Prozac has been slightly less tumultuous. Based on these conflicting opinions, this is not an issue ripe for summary judgment. Genuine issues of fact exist as to whether this cat is necessary for LeBoo to use and enjoy his apartment. “If and when the Court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the ap- plication for summary judgment” (see Esteve v. Abad, 271 AD 725). “Since it deprives the litigant of his day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues.” Adre v. Pomeroy, 35 NY2d 361, 364; see also Millertor Agway Corp v. Briarcliff Farms, 17 NY2d 57). Here, there is a genuine triable issue of fact, namely, whether this cat is necessary for LeBoo to use and enjoy his apartment (see Major v. Housing Authority of City of DeKalb GA, 652 F.2d 454, 458 (1981)). Fourth, can reasonable accommodations be made by Crossroads which would permit LeBoo to keep his cat? This also constitutes a question of fact. LeBoo alleges that allow- ing him to keep his cat would not result in any undue financial or operational hard- ship to Crossroads. He claims reasonable accommodations could be made to allow him to keep his cat (see Southwestern Community College v. Davis, 442 U.S. 397, 412-413 A 12 Animals: Welfare, Interests, and Rights (1979); School Board of Nassau County v. Arline, 480 U.S. 273, 278 (1987)). However, accommodations which place “undue financial and administration burdens” on Crossroads would not be reasonable (Southwestern Community College v. Davis, 442 U.S. at 412). The property manager of Crossroads, in her affidavit, states that the cat would cause an undue administrative burden, and would create health problems for other tenants. This affidavit creates a question of fact concerning this issue. The case is remanded back to the trial court for further consideration. Questions & Notes 1. If you represent the landlord, would you recommend settlement with the plaintiff? On what terms? 2. If you were on a jury, would you believe “that the cat is necessary or required for LeBoo to be able to fully use and enjoy his apartment?” If you were the plaintiff’s attorney, how would you prove this element? If you were the de- fense attorney, how would you disprove this element? Does the tenant in this case have a more deserving case for having a pet than the non-mentally retard- ed tenant neighbor? See, Robert L. Schonfeld, “Reasonable Accommodation,” Under the Federal Fair Housing Amendments Act, 25 Fordham Urban L. Jour. 413 (1998). See also, Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) (discussion of the elements the plaintiff must prove). Landlord’s Liability for Injury by Tenant’s Dog One of the most recurring fact patterns for landlords is law suits against them by third parties for injuries caused by the dogs of tenants, usually because the tenant does not have insurance for the cost of the injury. We hold that a landlord owes no duty to a tenant’s invitee to prevent injuries proximately caused by an animal kept by the tenant on the leased premises if the landlord does not retain control over the area where the injury occurred. A landlord does not retain such control where he has the right to coerce the removal of the animal by threatening to terminate the tenancy. We note that we reach no conclusion as to whether Alexus could prove the element of proxi- mate causation in this case. For the preceding reasons, the order granting sum- mary judgment is affirmed. Klitzka ex rel. Teutonico v. Hellios, 810 NE2d 252 (Ill.App. 2 Dist., 2004) Same result, Ranwez v. Roberts, 601 SE2d 449 (GA 2004); Scott v. Donkel, 671 So.2d 741 (Ala.Civ.App.,1995)(no duty to inspect for dog). Also see, Holcomb v. Colonial Associates, L.L.C., 2004 WL 1416659, (NC)(as the landlord had the power to remove “undesirable” dogs within a lease, then negligence would attach to his inaction when he knew of the risk of the dog which caused injury to third party). See generally, Mark S. Dennison, Proof of Landlord’s Liability for Injury Inflicted by Tenant’s Dog, 85 Am. Jur. Proof of Facts 3d 1. A: Pets & Housing A 13 Section 4 Condominiums Even though a condominium owner has a full ownership interest in his individual dwelling unit, and not just a leasehold, he or she is often bound by the same sorts of rules and regulations that bind a tenant. This arises from the fact that when a person purchases a condominium, in addition to the ownership of the units, they also become a member of and agree to be bound by the covenant and by-laws of an owner’s as- sociation. These condominium associations have much to say about the conduct of its members both on the common grounds of the development and in the owner’s indi- vidual units. As stated by one court, within the condominium concept is the ability and the power to promote the “health, happiness and peace of mind of the majority of the unit owners.” In effect, a condominium project is a small town, and the association acts as a local political body. Again, it is clear that the possession of pets is a proper subject matter for control by an association. One 1994 California case gives a detailed discussion of the background of condominiums and the application of the “reason- able” test to use restrictions such as limit the possession of pets. Any analysis of the appropriateness of pet limitations must distinguish between two fact patterns. In the first, the pet limitation is found in the master deed for the con- dominium units. These documents are considered to be in the chain of title by the purchaser. It is expected that a pet limitation in these documents will be read before the unit is purchased and therefore the Courts are more willing to enforce these provi- sions. The other fact pattern is when the limitation arises in the rules and regulations adopted by the association. In the prior case, the limitation existed prior to the owner buying the unit, while in the latter it is a limitation that can arise by majority vote after purchase of the unit and therefore is subject to more court intervention. One case set out three elements of review for a pet control provision that was within the primary, recorded documents: “the standard for review is whether any category one restric- tion is wholly arbitrary, in violation of public policy or an individual’s constitutional rights.” The context of analysis is property law, which allows considerable room for limitations of use. In California, by state law, a condo association’s use restrictions in the master deed must pass the reasonable test. The Supreme Court held that reason- ableness should be considered valid and enforceable “unless it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction’s beneficial effects that the restriction should not be enforced.” Nahrsted v. Lakeside Village Condo Assoc., 878 P2d 1275 (1994) Case by Case The Pines of Boca Barwood Condominium Association, Inc. v. Cavouti 605 So2d 984 (FL 1992). LETTS, J. The trial court found that a restriction in a condominium declaration against pets was a “‘class two’ restriction as defined in the case of Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981).” Accordingly, it directed a verdict in favor of the unit owner and against the condominium association. We reverse. A 14 Animals: Welfare, Interests, and Rights The restriction in question provided that “an apartment owner shall not keep any domestic pets in his apartment without prior written permission from the Board.” It was set forth in the declaration, which made it a category one restriction under Hid- den Harbour. Such a restriction is considered a “covenant running with the land” and is clothed with a strong presumption of validity. The standard for review is whether any category one restriction is wholly arbitrary, in violation of public policy or an individual’s constitutional rights. On the other hand, where the use restriction is not set forth in the declaration, but is adopted as a rule by the board of directors, it is considered a category two restriction and the standard of review is quite different. In this latter category, the standard for review is whether the rule is reasonably related to the promotion of the health, hap- piness and peace of mind of all the unit owners. Hidden Harbour; Eastpointe Property Owners’ Association, Inc. v. Cohen, 505 So. 2d 518 (Fla. 4th DCA 1987). We believe the trial court’s characterization of the restriction here was improper. Since it was found in the declaration, it is a category one restriction. Under Hidden Har- bour, this court need only decide whether the restriction was arbitrary and capricious or in violation of public policy. Prior decisions have upheld restrictions against pets and we see no reason to disagree with them. Wilshire Condominium Association, Inc. v. Kohlbrand, 368 So. 2d 629 (Fla. 4th DCA 1979); see Chateau Village North Condominium Association v. Jordan, 643 P.2d 791 (Colo. App. 1982). Because the restriction is a valid category one restriction, the trial court mischaracter- ized it and applied the wrong standard. The restriction requires prior written permis- sion. No such permission was given before this dog came on the premises. As a result, there was a failure to comply on the part of the unit owner. The trial court, therefore, erred in granting a directed verdict. In view of this holding, the trial court also erred in awarding attorney’s fees to the unit owner and we reverse that award. REVERSED AND REMANDED FOR RETRIAL. GLICKSTEIN, C.J., and HERSEY, J., concur. One court stated that a different test would be used if the prohibition on pets was only in an association’s adopted rules and regulations: “the standard for review is whether the rule is reasonably related to the promotion of the health, happiness and A Focusing Question peace of mind of all the unit owners” Should public policy interests limit a landlord (The Pines of Boca Barwood Condo- or condo association to reasonable regulation minium Association, Inc. v. Cavouti, of pets and preclude total prohibitions? 605 So2d 984 (FL 1992). In such a case the context for review is not property law but local zoning or nuisance restriction—ex- ercises of police power. Another court set out three elements which must be present for a pet provision to be binding on the individual owner when it was a regulation adopted by the association’s board: (1) the rule must be reasonable; (2) the rule must be consistent with state statutes; (3) the rule must be enacted in accordance with the appropriate procedure. A: Pets & Housing A 15 Case by Case Noble v. Murphy 612 NE2d 266 (MA 1993) The plaintiffs, as managers of a condominium established under G. L. c. 183A, sought the removal of two pet dogs from a condominium unit owned by John Murphy and Margaret Wilson. They based their action upon a condominium by-law banning all pets from any housing unit or common area of the condominium. They also sought to enforce by-laws providing for the assessment of a $5 per day per violation penalty and payment by the defendants of the “costs and expense of eliminating” violations. The pertinent facts are as follows: Established in 1973, “Weymouthport Condomin- ium—Phase I” is a 271 unit complex managed by a trust of which the plaintiffs are trustees. The trust was formed pursuant to G. L. c. 183A, § 8(i), to govern the manage- ment of the condominium and contained by-laws that incorporated rules and regula- tions which included a restriction against raising, breeding, or keeping any “animals or reptiles of any kind … in any Unit or in the Common Elements …,” together with a provision, sometimes referred to as an amortization or no replacement rule, that protected the harboring of pets owned at the time of purchase of a unit. In 1979, the original trust by-laws were amended to provide that “[n]o animals, reptiles or pets of any kind shall be raised, bred, kept or permitted in any Unit or in the Common Ele- ments. …” The significant difference was that the pet restriction had ascended from rules and regulations to the by-laws. The amendment was enacted in response to the trustees’ concern with pet problems and their understanding that Johnson v. Keith, 368 Mass. 316 (1975), had rendered unenforceable the pet restriction contained in the regu- lations. The amendment also contained an amortization provision allowing unit own- ers and tenants “in occupancy prior to the recording of [the] amendment” to continue to keep in their unit any household pet owned by them at the time they purchased or rented their units. Also, the amendment made allowance for unit owners to have one household pet upon receipt of written permission of the trustees. In September of 1983, Murphy and Wilson were notified by the manager of the con- dominium that a dog which they had acquired since purchasing their unit earlier that year was being kept by them in violation of the pet restriction amendment. After re- moving the dog, Murphy and Wilson, in November of 1983, and again in January of 1984, unsuccessfully sought permission to return it to the unit, the latter request being based upon Wilson’s claimed permanent and total disability. In April, 1985, Murphy and Wilson moved out. After a period of renting out their unit, they reoccupied it in November, 1987. Upon being notified in May, 1988, that they were again in violation of the pet restriction, Murphy and Wilson requested and received permission to house their dogs (they had by then acquired a second dog) temporarily in their unit during weekends until October 1, 1988. When the dogs were not removed after that date, the plaintiffs imposed a fine of $5 a day and ultimately brought this action. 1. Validity of the pet restriction. The defendants claim the applicable standard for de- termining the validity of the pet restriction is that of “unreasonable interference” un- der G. L. c. 183A, § 11(e), as inserted by St. 1963, c. 493, § 1, which requires the by-laws of the organization of unit owners to “at least” contain such use restrictions “not set forth in the master deed, as are designed to prevent unreasonable interference with the use of [the owners’] respective units and of the common areas and facilities by the several unit owners.” They argue that the question whether the presence of ani- mals constitutes an unreasonable interference under the circumstances is one of mate- A 16 Animals: Welfare, Interests, and Rights rial fact and therefore not suitable for resolution by summary judgment. They rely in large part on an affidavit of an expert in animal behavior who opines that “prohibi- tion of all animals from the condominium units is more restrictive and burdensome than required to meet the statutory standard of preventing unreasonable interference with use of other units or the common areas.” The affidavit points to animals such as goldfish and parakeets which “present  no risk of interference of any kind to use of neighboring units or common areas.” The argument misperceives both the thrust of the statute and the basic nature of condominium ownership. General Laws c. 183A, § 11(e), permits restrictions on the use of residential units which are “designed to prevent” unreasonable interference by individual unit owners with the other owners’ use of their respective units and the common areas and facilities. There is no prohibition against restrictions that, although patently designed to pre- vent such interference, also incidentally preclude generically similar uses that may not be as likely to encroach on the other owners’ use of their units and the common areas and facilities. Close judicial scrutiny and possible invalidation or limitation of fundamentally proper but broadly drawn use restrictions, not expressly prohibited by the enabling statute, would deny to developers and unit owners the “planning flex- ibility” inherent in c. 183A. See Barclay v. DeVeau, 384 Mass. 676, 682 (1981). In Franklin v. Spadafora, 388 Mass. at 769, the court upheld a by-law amendment restricting to two the number of condominium units which could be owned by one person or entity and noted that nothing in c. 183A prohibited the type of general restriction at issue even if the court assumed that tenants would not be less responsible than owners. Id. at 768- 769 & n.12. The court stated that, viewed as a compromise between the desires of the majority and the right of an individual owner to use property as he or she desires, “the amendment is a reasonable means of achieving the majority’s proper goal.” Id. at 769- 770. See Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530, 534-535 (1989) (a condominium association may prohibit the operation of a family day-care business in a unit notwithstanding that the enterprise’s interfering effect on other unit owners is “minor … modest[ ] … [and] benign …”). “The most common standard of review [of condominium use restrictions] is equitable reasonableness.” Goldberg, Community Association Use Restrictions: Applying the Business Judgment Doctrine, 64 Chi.-Kent L. Rev. 653, 655 (1988). Franklin v. Spadafora, 388 Mass. at 770-772, can be read to favor such a test. Its formulation is commonly attributed to Hidden Harbour Estates, Inc. v. Norman, supra, a Florida decision cited in both Franklin v. Spadafora, supra at 769, and Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. at 533, and in which it is stated that: “the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that con- duct be so offensive as to constitute a nuisance in order to justify regulation thereof.” Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d at 182. This approach recognizes the discretion of the majority of unit owners while at the same time limiting their rule- making authority to those matters “that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 640 (Fla. Dist. Ct. App. 1981). We recognize that a somewhat dif- ferent standard of review may be implicated where, in contrast to this case, a restric- tion is promulgated after the owner who is in violation of the rule acquires his unit. See Franklin v. Spadafora, supra at 772-774. When enacting the pet restriction in issue, the trustees expressed concern with “pet problems.” The record indicates that they had received several complaints involving dogs and one that concerned a boa constrictor. Unit owners are not required to con- duct investigations or cite authority in order reasonably to conclude that the presence A: Pets & Housing A 17 of pets within the condominium may interfere with their health, happiness, and peace of mind. [n6] It is a subject well within their common knowledge and competence. Also, considerations of efficient and even-handed enforcement support an absolute prohibition of all pets rather than a restriction limited to certain pets. Cf. Wilshire Con- dominium Assn., Inc. v. Kohlbrand, 368 So. 2d 629, 631 (Fla. Dist. Ct. App. 1979) (citing New York cases in which absolute dog prohibitions have been upheld as a matter of law). Any concern with procrustean effect is met by the provision giving the trustees discretion to permit a unit owner to keep a household pet. [n6] “Attitudes about pet animals are understandably passionate. One person’s companion is another’s nuisance. It is not necessary to approve or even sym- pathize with [the trustees’] position to acknowledge that an owner of … prop- erty may think it best for the property and for the preponderance of current and future [occupants] that there not be pet animals in the [condominium].” Clifford V. Miller, Inc. v. Rent Control Bd. of Cambridge, 31 Mass. App. Ct. 91, 95 (1991). There is sound basis for treating restrictions in the originating documents as being “clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restric- tions to be imposed. Such restrictions are very much in the nature of covenants run- ning with the land and they will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. … Indeed, a use restriction in [the originating documents] may have a certain degree of unreasonableness to it, and yet withstand attack in the courts.” Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d at 639-640. See also Natelson, Law of Property Owners Associations § 4.4.4, at 34 n.17 (1989 & Supp. 1991) (questioning the appropriateness of reasonableness review when the regulation in question was enacted prior to its opponents’ acquiring ownership and was known by them at the time of acquisition). The defendants do not contend that there is any fundamental public policy or constitutional provision guaranteeing the right to raise, breed, or keep pets in a condominium. By insulating properly-enacted and evenly- enforced use restrictions contained in the master deed or original by-laws of a con- dominium against attack except on constitutional or public policy grounds, already crowded courts and the majority of unit owners who may be presumed to have cho- sen not to alter or rescind such restrictions will be spared the burden and expense of highly particularized and lengthy litigation. 2. Enforcement. Murphy and Wilson received ample and repeated notice of violation and reasonable opportunity to comply with the restriction. The record does not reveal a genuine issue of waiver of violation or of arbitrary, capricious, or discriminatory en- forcement. That the trustees consistently and reasonably utilized a complaint-driven procedure for enforcement, which incidentally may have focused on pets observed outside the units, rather than on any which might have been kept within, does not give rise to any constitutional issues. 3. Fines and Fees. The defendants argue that the by-law provision which entitles the plaintiffs to recoup the “cost and expense” of eliminating by-law violations by an of- fending unit owner does not include attorneys’ fees. The expense provision is part of a valid contract between the parties. Barclay v. DeVeau, 11 Mass. App. Ct. 236, 245 (Greaney, J., dissenting), S.C., 384 Mass. 676 (1981). Attorneys’ fees generally consti- tute the most substantial component of the cost of enforcement and, therefore, would appear to be within the context of the word “expense” and the objective intent of the A 18 Animals: Welfare, Interests, and Rights bylaws to shift the financial burden of successful enforcement to the offender. We need not rule on the question, however, since there is no indication in the record that the defendants raised the issue below or objected to the award of attorneys’ fees. Edgar v. Edgar, 406 Mass. 628, 629 (1990). The fines were in accord with the by-laws and were properly assessed by the plaintiffs and included in the judgment. [Attorney fees to- taled $15,000.] Judgment affirmed. Questions & Notes 1. If you were an attorney for a condo developer, would you suggest that pet restrictions be placed in the covenants of the property or in the by-laws of the owners’ association? 2. What if the by-laws had a provision prohibiting dogs over 15 lbs or 20 inches high. Could an owner claim the limitations are arbitrary and capricious? 3. In one case, a rule limiting each unit owner to one dog or cat was found to be reasonable. Dulaney Towers Maintenance v. O’Brey, 418 A2d 1233 (MD 1980). In another case, a limitation that allowed only existing pets and disal- lowed any replacement of pets was held reasonable. Board of Directors of 175 East Delaware Place Homeowners Association v. Hinojosa, 679 NE2d 407 (IL 1997) Finally, although disallowed on other grounds, one court would have been willing to hold as reasonable a provision that outlawed the keeping of any animal or reptile. Johnson v. Keith, 368 MA 316, 331 NE2d 879 (1975).In the case Nahrstedt v. Lakeside Village Condominium Assos., 878 P2d 1275 (CA 1994), the court found a prohibition on pets reasonable. This caused con- siderable controversy in the state and as a result a new law was adopted. The key language states: (a) No governing document shall prohibit the owner of a separate inter- est within a common interest development from keeping at least one pet per within the common interest development. Calif. Civil Code § 1360.5 (2000) Is this fair to those who do not want to deal with neighbors who have pets? 4. Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Hawaii, 2003) (plaintiff did not get past a motion for sum- mary judgment as she did not show the pet was “peculiarly suited to amelio- rate the unique problems of the mentally disabled”). Section 5 Subdivision Covenants A subdivision has often been compared to a small town and the covenants to a set of zoning laws. But there are differences. A: Pets & Housing A 19 Case by Case Ridgewood Homeowners Association v. Mignacca 2001 WL 873004 (R.I.Super.) Decision Fortunato, J. This case presents the Court with the question of whether Kathy and David Mignacca and their four minor children may lawfully keep Sonny, their miniature horse, at the family’s residence in the Ridgewood subdivision of western Cranston. The Mignac- ca family, the Ridgewood Homeowners Association and those property owners and residents of the Ridgewood subdivision who contend the Mignaccas cannot lawfully harbor Sonny have brought the controversy before the Providence County Superior Court by way of two paths. On April 11, 2001, the Zoning Board of Review of the City of Cranston, after hearing from the Mignaccas, Rena Dresseler, the president of the Ridgewood Homeowners Association and a vigorous opponent of Sonny’s residing in Ridgewood, as well as other persons supportive of and opposed to the Mignaccas’ position, granted the Mi- gnaccas’ petition for a variance and allowed them to keep Sonny on their nearly four acre lot, subject to certain conditions. From that decision, the Ridgewood Homeown- ers Association, Ms. Dresseler and others claimed an appeal to this Court. On the 22nd day of May, 2001, the Ridgewood Homeowners Association, Rena Dresseler and other individual homeowners from Ridgewood went on the offensive against the Mi- gnaccas and Sonny, and filed a verified complaint seeking injunctive relief to bar the Mignaccas from keeping Sonny on their property and from erecting and maintaining a shed to shelter the miniature horse, the plaintiffs’ contention in this suit being that restrictive deed covenants prohibited Sonny from being kept in Ridgewood. A tempo- rary restraining order was issued by this Court May 23, 2001 enjoining the Mignaccas from keeping Sonny on their property until the matter was finally adjudicated on the merits. A counterclaim challenging the keeping of any animals by the plaintiffs, other than cats and dogs, was filed by the Mignaccas on July 11, 2001. This Court, sitting without a jury, took testimony during a number of half-day ses- sions, commencing on June 27, 2001 and ending on July 12, 2001. The principal facts of significance are not in dispute; and indeed, counsel for the Mignaccas and for the Association have stipulated to a number of facts. Christian Mignacca, the nine-year old son of Kathy and David Mignacca, was the first to testify in this matter, and I find his testimony to be credible and trustworthy. Christian answered all questions put to him by counsel and the Court in a forthright and articulate manner. He spoke of his involvement with the training of Sonny dur- ing Sonny’s stay of approximately thirty days at his home before the issuance of the temporary restraining order; and he discussed the behavior of the miniature horse both while it is housed on the Mignacca property and when it participates in horse shows and competitions at venues designed for that purpose. Christian explained that he has won a number of ribbons while competing with Sonny against other miniature horses and their masters. While Kathy Mignacca and Christian’s sister, Nicole, also participate with Sonny in such contests, it is clear that Christain’s involvement with the training and showing of the little horse is significant. Christian also discussed his physical limitations resulting from bacterial meningitis when he was two. A 20 Animals: Welfare, Interests, and Rights From Kathy Mignacca, whom I also find to be a credible witness, Christian’s activities with Sonny were confirmed, and the Court was also told that Christian’s involvement with Sonny and the miniature horse competitions has been a great source of enjoy- ment and satisfaction for the boy, and indeed has been helpful for his confidence and self-esteem, given the fact that his early childhood bout with the often fatal disease of bacterial meningitis has left Christian with scarring over much of his body, including his face and arms, and with weakened legs that require him to wear braces frequently. His weakened limbs preclude him from participating in other competitive sports ap- propriate for his age, such as baseball, soccer or football, and he finds the delights and challenges of competition in the horse shows he enters with Sonny. Regarding Sonny himself, the Court learned of his behavior, habits and growth poten- tial from Christian and Kathy Mignacca, and had the opportunity to observe Sonny on the Mignacca property during a view on July 6, 2001. Sonny’s shoulders will never be higher than 3 feet from the ground and his weight will never exceed 150 pounds. The animal, by all descriptions, as well as by the Court’s view on July 6, is gentle, amiable and not high strung or vicious in the least. His stature and weight will never reach that of a Great Dane, a Bull Mastiff, or a Saint Bernard; and it is unlikely that any training could make him into a guard or attack animal along the lines of a Doberman Pincher, a German Shepherd or a Pit Bull. Indeed, the popular name for this animal—“minia- ture horse”—is an apt one. When Shakespeare’s Richard III cried out to his deity and the fates to supply him with a horse in return for his kingdom, if Sonny (or one of his ancestors) had appeared from the underbrush into the clearing, the distraught king surely would have uttered an Anglo-Saxon expletive that would make an Elizabethan audience blush and then fallen on his sword. Alas, Sonny the miniature horse cannot be ridden nor used to pull a plow through a field. In order to properly care for the horse, Mr. DelFarno converted a portion of his 15 x 25 foot shed into an appropriate place for Pogo. At some point, he received a letter signed by Ms. Dressler in her capacity as President of the Ridgewood Homeowners Associa- tion telling him that the shed was in violation of the restrictive covenant pertaining to the building of such structures, apparently, Section 6, which provides, among other things, that “no structure..., shack ... or other outbuilding shall be used, placed, erected or constructed on any lot at any time either temporarily or permanently.” Upon receiv- ing the letter, Mr. DelFarno said that he called each member of the board, and none of them had any information or even noticed that there was any problem with his shed. As his testimony was uncontradicted, the only conclusion to be drawn by the Court is that Ms. Dressler, without advising other board members, took it upon herself to tell Mr. DelFarno that his shed was in violation of the restrictive covenant. For his part, Mr. DelFarno advised Ms. Dressler, and apparently anyone else with whom he spoke, that he would take his shed down only if the other cabanas, sheds, and outbuildings scattered throughout the subdivision were also removed by their owners. Mr. Del- Farno opined that the homeowners association enforced its covenants arbitrarily. In their case seeking equitable relief, the plaintiffs called no witnesses to the stand, though Rena Dresseler testified when called by the Mignaccas. Ms. Dresseler testified that she had occasionally heard Sonny neigh while she was on her property some three or four hundred feet away from where the Mignaccas keep Sonny in a fenced enclosure. It is difficult to believe that Sonny could be heard from that distance, as his neigh, such as it is, is more akin to a cat’s meow and apparently does not occur very frequently according to Kathy Mignacca. When the group of approximately fifteen people who went on the Court’s view approached Sonny in his enclosure, the sound made by the footfalls was noticeable and at least three persons in the entourage car- A: Pets & Housing A 21 ried large television cameras on their shoulders. This was probably not a sight that Sonny had encountered in the past, yet his reaction was one of silent indifference as he continued his equine ruminations. Counsel for the Association was invited by the Court to attempt to make Sonny emit a sound, but the invitation was declined. Kathy Mignacca declared that the horse would neigh usually when presented with food. In the presence of those who were attending the view, Kathy Mignacca entered the enclosure and offered food to Sonny, who obliged with a neigh—of the feline meow variety—which could barely be heard 20 feet away. During her testimony, Ms. Dresseler also disclosed that at some point in the past, she had kept a 4 foot boa constrictor as a pet and was presently keeping on her prem- ises three iguana lizards, and three or more stray cats that she regularly fed and who stayed under her outside deck. Additionally, she has on her premises two parrots. During the view, Ms. Dresseler’s residence was also visited by the Court and counsel for the Mignaccas and the Association. From her deck, one can look across the adjoin- ing backyard and pool of the Nardolillo family and get a glimpse of portions of the Mignaccas’ garages and the top of a slide that has been placed near their swimming pool. The Mignacca pool and house cannot be seen, nor can the enclosure and shed in which Sonny is kept. Sonny himself, could not be seen, but Ms. Dresseler ascribed that to the fact that a pile of dirt resulting from excavation in the Nardolillo’s backyard ob- scured the view. As the fact finder, I conclude that even without the dirt in the way, the stands of trees, shrubs, bushes and plants on three parcels of land would make a view of Sonny difficult, if not impossible; and if one did chance to catch a glimpse of Sonny from the Dresseler deck, the miniature horse would appear as a tiny denizen of Lilli- put, the island Gulliver visited in his famous travels. Sonny, it should be noted, is kept behind the Mignacca house and to the rear of their property, and cannot be observed readily, if at all, from the street. The Mignaccas have created for themselves, through planting and landscaping, a park-like environment. All the houses in Ridgewood are what might be termed, by way of understatement, upscale and lavish. Ridgewood, in short, is a verdant and secluded enclave for some members of Rhode Island’s eco- nomic aristocracy. At several times during the course of these proceedings, counsel for Ridgewood and Ms. Dresseler argued that David and Kathy Mignacca were exploiting the afflictions of their son, Christian, in order to gain the favor of the Court, as well as popular sympathy by way of media manipulation, for whatever good that might gain them. The genesis of this contention apparently is Ms. Dresseler, who obliquely opined dur- ing her testimony at the zoning hearing that the Mignaccas were seeking to use the condition of Christian to gain the favor of the zoning board. (Tr. 22). Kathy Mignacca testified in this proceeding that she and Ms. Dresseler had a confrontation about this accusation after the Zoning Board of Appeals had taken testimony and rendered its decision. These suggestions by Ms. Dresseler and her lead attorney on this point are reckless, mean-spirited and not supported by one iota of evidence. On the contrary, the transcript of the April 11, 2001 zoning hearing demonstrates that from the outset Kathy Mignacca has been candid and forthright about the salubrious affect playing and working with Sonny could have on Christian. (Tr. 9, 13-14). This Court takes judi- cial notice of the emotional and physical well being animals kept as pets often bring to their human companions. FN2. A number of scientific studies have confirmed what any casual observer of pets interacting with humans should know. See, e.g. Alan M. Schoen, Kin- dred Spirits: How the Remarkable Bond Between Humans and Animals Can Change A 22 Animals: Welfare, Interests, and Rights the Way We Live (2001). But, while relevant, it is not the physical and psychological challenges that Christian confronts as a result of his bout with bacterial meningitis that govern the outcome of this case. The paramount concerns of this Court in resolving the controversy are the ordinances of the City of Cranston, the decisional law of the Rhode Island Supreme Court respecting restrictive covenants, and the principles and maxims of equity. Logic suggests that the first point of examination be the Cranston City Code, for if Sonny’s residing with the Mignaccas is prohibited by the ordinances of Cranston, then an ex- amination of the restrictive covenants is pointless. [The Court found that the presence of a horse was specifically allowed under the zon- ing ordinance.] Restrictive Covenants I turn now to an examination of the restrictive covenants at issue in this controversy. The document containing all restrictive covenants pertaining to the parcels located in Ridgewood Estates is Exhibit A in the consolidated action. Restriction 8, titled “Livestock and Poultry,” provides in its entirety: No animals, livestock or poultry of any kind shall be raised, bred, or kept on any lot, except that two (2) dogs and/or two (2) cats may be kept provided that they are not kept, bred or maintained for any commercial purpose. No kennels or other structure for the keeping of such pet shall be maintained on the premises. The plaintiffs also rely on Restrictive Covenant 5, which defines nuisances; and after amending their complaint, the plaintiffs sought to demonstrate that the Mignaccas used offensive construction or lawn machinery and recreational vehicles on their land, in addition to keeping Sonny. Restrictive Covenant 5, titled “Nuisances,” provided in its entirety: No professional, trade, business or commercial enterprise of whatsoever na- ture may be conducted or operated on the granted premises. No substance, thing or material shall be kept of used on any lot which will emit foul or ob- noxious odors or that will cause any noise that will or might disturb the peace, quiet, comfort or serenity of the occupants of the surrounding property. It is necessary for this Court to determine the intended scope of Restrictive Covenant 8. Rena Dresseler and the Ridgewood Homeowners Association argue strenuously that Sonny should be placed under the category of “livestock” and therefore cannot be kept on the Mignaccas’ Ridgewood property. Our legislature has seen fit to define the term “livestock” in contradistinction to the word “pet” in an effort to categorize different members of the animal kingdom. In R.I.G.L. 4-13-1.2(5), we find the follow- ing definition of livestock: “Livestock” means domesticated animals which are commonly held in moder- ate contact with humans which include, but are not limited to, cattle, bison, equines, sheep, goats, llamas, and swine. (emphasis supplied) R.I.G.L. 4-13-1.1(8) favors us with us a definition of pets: “Pets” mean domesticated animals kept in close contact with humans, which include, but may not be limited to dogs, cats, ferrets, equines, llamas, goats, A: Pets & Housing A 23 sheep, and swine [emphasis supplied]. It appears, then, that the legislature recognized that horses—as well as some other animals such as, llamas, goats, and even swine—can be categorized as either livestock or pets, the different labels to be applied according to the degree of contact the animal has with humans. In the instant matter, it is clear that Christian, and some other mem- bers of his family, have close contact with Sonny and treat him as a pet as they engage in almost daily routines with him involving feeding, training, grooming, playing and showing in horse competitions. In seeking to determine the intent of the drafter of this covenant, the principles of statutory construction as enunciated by the Rhode Island Supreme Court and other authorities provide a guide. One rule of construction is that “general terms be con- strued as limited by more specific terms.” Montaquila v. St. Cyr, 433 A.2d 206, 214 (1981). It appears that the all-inclusive term “animal” has been limited by the words used in the title of the covenant, “Livestock and Poultry,” and further limited by the use of those same words following immediately upon the use of the word “animal” in the text. Also apposite is the “principle of noscitur a sociis, that the meaning of one word can become clear by reference to other words associated with it in the statute …” Berthiaume v. School Com. of Woonsocket, 121 R.I. 243, 248 (1979). Naturally, to resolve ambiguities or a lack of clarity of intent, the restrictive covenant must be read in its entirety and harmonized with every other covenant in the deed. The plaintiffs pled that they perceived a breach of the livestock and poultry provision (Restrictive Covenant 8) and also pled that the Mignaccas were in violation of the nuisance provision (Restrictive Covenant 5) in keeping their horse and shed on their land. Not one shred of evidence was produced suggesting that either Sonny or the 10 foot by 12 foot shed produced any sort of nuisance, either by way of emitting noxious odors, disturbing the peace or by creating an eyesore. This Court can judicially note that a greater noise level than could ever be generated by Sonny would result from any number of usual Ridgewood activities, such as backyard barbecues, teenager pool parties, barking dogs and the chirping of crickets after dusk. I conclude that the intent of the drafter of Restrictive Covenant 8 was to provide the residents and potential residents of the Ridgewood development from having a neigh- bor or neighbors engage in the business of keeping and raising animals in a farm-like setting for commercial purposes, i.e., the raising of chickens for their eggs and meat, the raising of cattle for dairy products, the maintaining of a horse stable for riding les- sons and to make a profit by boarding other people’s horses, etc. Additionally, the covenant is unclear as to whether such animals as are barred by Restrictive Covenant 8 are precluded from only the outside of a dwelling place or whether they are barred from the inside as well. The lead individual plaintiff, Rena Dresseler, asserts a right to keep parrots, lizards and snakes within her house, claim- ing that Restrictive Covenant 8 applies only to land outside the house. This viewpoint is mistaken and not supported by the language of the covenant. At best, the cove- nant is ambiguous as to the scope of its application, as the use of the words “lot” and “premises” within the covenant do not by and of themselves bespeak of any distinc- tion between the area situated inside the house and that located outside. Controlling authority of our Supreme Court directs how this ambiguity is to be resolved: … the general rule concerning restrictive covenants is that they are to be con- strued strictly so as to favor an unrestricted use of property, are not to be ex- A 24 Animals: Welfare, Interests, and Rights tended by implication, and if there is ambiguity, it is to be resolved in favor of an unrestricted use. Following Emma, this Court concludes as a matter of law that such animals as may be kept at the residences in Ridgewood may be kept either inside or outside the actual dwelling in the discretion of the owners. In addition to containing the ambiguities already discussed above, the restrictive cov- enants involved in this matter, especially Restrictive Covenant 6, “Temporary Struc- tures” and 8, “Livestock and Poultry,” have been enforced arbitrarily or not at all. Re- buttal witnesses called by the plaintiff testified to the effect that the original developer went bankrupt around 1994 and from that time forward there was no mechanism for the enforcement of the covenants. This meant that during this time people could build on their property and keep animals in violation of the restrictive covenants. Indeed, during the view, freestanding garages, as well as in one case a garage built under a house, all in contravention of the restrictive covenants, were observed, as was a driveway built without regard to the specifications found in the covenant. Testimony was presented by witnesses for both the plaintiff and the defendant that indicated the existence of sheds and cabanas throughout the plat in violation of the covenants, at least according to the perception of the person giving the testimony. None of these covenant “violations” seemed to detract in any way from the manicured and upscale ambiance of the neighborhood. However, the rebuttal witnesses were mistaken in their declarations that as residents of Ridgewood they were powerless to enforce any perceived violations of the covenants until the plaintiff Homeowners’ Association was created around 1998. In effect, between 1994 and 1998 there was a holiday in Ridgewood from the mandates of all the restrictive covenants. While an expert real estate broker and appraiser, one Donald Coletti, called by the plaintiffs, testified as to the efficacy of restrictive cov- enants in preserving the character of a neighborhood, he had nothing to say about the deleterious affects of any specific violations on Ridgewood. He further testified that he had participated in the transfer of the Mignacca home from its former owners, and that he from time to time engaged in the sale of other homes in this section of Cran- ston. At the time he testified, he was trying to sell a home in Ridgewood Estates and had not been able to bring about the sale as quickly as he would have liked; but none of this was attributed to the Mignaccas and their keeping of Sonny on their property, or to any other violation by any person regarding the restrictive covenants. Not only was there a four year hiatus in the enforcement of these restrictions, though no resident of Ridgewood was obliged to stay his or her actions regarding any per- ceived violation, it is clear that the president of the association has kept animals on her property, the existence of which were known to other members of the association. As noted above, the DelFarno miniature horse, Pogo, was also known to at least one member of the board of directors of the association and presumably known to many other residents of the subdivision, as the animal was observable from the street. The board member, Laurie Biern, testified that she believed the horse was there for only three months and that the reason she did not report it was that she thought the DelFar- nos were simply taking care of the horse for a short period of time as an act of mercy because the horse, according to Ms. Biern, was undernourished when the DelFarnos acquired it. She described herself as an animal lover who regularly takes in stray ani- mals, including “wild cats” in order to nurse them to health. This Court concludes that the restrictive covenant relative to livestock and poultry is A: Pets & Housing A 25 now being applied arbitrarily to the Mignaccas. There is no exception in Restrictive Covenant 8 that provides for miniature horses to be kept so long as they are being nursed to health. In fact, as Rene Dressler testified, there are no written rules, regu- lations, or guidelines of any type or description that contain criteria as to when an exception may be granted relative to the enforcement of Restrictive Covenants 5, 6 and 8. As I indicated above, the intent of the drafters of the restrictive covenants was not to bar a pet such as Sonny, but rather to prohibit cattle and horse farms, chicken coops and the like. Nonetheless, another factor in this Court’s decision is the arbitrary enforcement, or non-enforcement, of the covenants. Equity The keeping of animals other than dogs and cats by Rena Dresseler, the regular har- boring of animals by Ms. Biern, including a litter of “wild cats,” the keeping of more than two dogs or two cats by other residents of Ridgewood, and the failure of any action to be taken against the DelFarnos and “Pogo” by the plaintiffs, not only show an arbitrary enforcement of Restrictive Covenant 8 but place in front of the plaintiffs an insurmountable barrier regarding the equitable maxim, “He (or she) who seeks eq- uity must do equity.” This maxim is not to be confused with the clean hands doctrine. The fundamental equitable maxim that I rely upon declares, in effect, that one who seeks to invoke the equitable and extraordinary injunctive power of the court rela- tive to a claimed covenant violation cannot himself or herself be in violation of that same restriction, or have ignored other similar violations by other persons. It would be manifestly unfair for members of the association or other residents of Ridgewood to keep snakes or parrots or three dogs while denying Christian and the Mignaccas a right to keep their miniature pet horse Sonny. Moreover, the plaintiffs have not proved harm—let alone irreparable harm—to their respective properties or to any rights they enjoy. The plaintiffs would like this Court to believe that without injunctive relief the Mignaccas’ property will have the appearance of a cross between Old MacDonald’s Farm and Noah’s Ark situated on Tobacco Road, but nothing in evidence suggests this. Putting aside for the moment my analysis of the restrictive covenants that appears above, the plaintiffs have not produced any evidence whatsoever that indicates that Sonny and the shed he uses constitute a nuisance. In my view, it is doubtful that he can be heard beyond the boundaries of the Mignacca lots, and if his gentle whinny hap- pens to ride a breeze on to some neighbor’s property the sound will be barely audible, and certainly not anywhere as loud as the barking of even a small dog. There was no testimony as to any odors coming from Sonny or the manure he generates; and this is not surprising as the horse during the view was immaculately groomed; and Ms. Mi- gnacca testified that the manure is collected regularly by the family and kept in sealed bins (which were displayed on the view) until its removal from the property. No evi- dence was produced indicating that Sonny’s presence will in any way inhibit neigh- bors from the free and untrammeled use of their own property, nor will his presence diminish property values. Balancing the equities—and again keeping to one side my determination that Restrictive Covenant 8 does not preclude the keeping of a minia- ture horse—none of the plaintiffs experiences any hardship by the Mignaccas keeping Sonny. Balancing the equities, the Mignaccas have found a gentle pet and wholesome activity for Christian, whose weak legs, problematic growth plates and braces prevent him from participating in other competitive activities, such as baseball and football, with his friends and other children of his age, and this clearly outweighs the undiffer- entiated fears of the Homeowners Association and the individual plaintiffs. A 26 Animals: Welfare, Interests, and Rights Plaintiffs argue strenuously, but without supporting evidence, that Sonny will drive down property values, if not throughout the development, at least regarding near- by homes. Based on the evidence presented before this Court, Sonny’s presence will cause no such problem; but it is likely that if the Ridgewood Homeowners Association develops a reputation that its leadership is unnecessarily and unreasonably zealous and brings homeowners to court for unobtrusive activities designed to meet the needs of a special child, then the owners in Ridgewood may find the marketability of their premises declining. Nothing in this decision is meant to suggest that Christian, or any other child living in Ridgewood, can flaunt clear, sound and appropriate restrictive covenants. If Christian wished to keep a herd of cattle because he and his parents thought it in his best interest to do so, or if he and his parents concluded that playing the drums in his backyard at one o’clock in the morning was a satisfying and benefi- cial activity, he would find no protection in this Court. He and his family are protected here today for the reasons set forward above. Final judgment reflecting this decision shall enter today. Questions & Notes 1. If a client had come into your office with a copy of Covenant 8 and asked whether horses could be placed on the land, what would you have said? Do you think the Court is wrong in its ruling? 2. On appeal the low court was overturned on almost every point: Homeowners association and certain members of association individu- ally sought review of zoning board’s grant of zoning variance that allowed property owners to keep miniature horses on their property. Association and members brought separate action against owners, seeking to enforce restrictive covenant. The Superior Court, Providence County, Fortunato, J., entered judgment against association and members. Association and mem- bers appealed and petitioned for writ of certiorari. The Supreme Court, Lederberg, J., held that: (1) restrictive covenant clearly prohibited residents within subdivision from maintaining structures for housing animals such that not enforcing covenant on ground of ambiguity was improper; (2) al- leged nonenforcement of covenant did not rise to level of substantial and general noncompliance so as to constitute waiver of enforcement of cov- enant; (3) alleged nonenforcement of covenant was not indicative of chang- es to subdivision so radical and permanent so as to render perpetuation of restriction against proposal to keep miniature horse on property plainly unjust; and (4) owners’ violation of restrictive covenant entitled association and members to equitable relief. So ordered. Ridgewood Homeowners Ass’n v. Mignacca, 813 A.2d 965 (RI 2003) (be- fore the opinion started the court noted that the pony had been moved to a nearby farm and another pony had joined the animal in question). 3. What do you think happened on appeal? Is this law v. equity; trail court v. ap- peals court; viewing the site v. paper appeals; or appeals court does not like horses or children? A: Pets & Housing A 27 Case by Case Turudic v. Stephens 31 P.3d 465 (OR 2001) The material facts are as follows: Plaintiffs Andy and Luisa Turudic are the owners of two American mountain lions, more commonly known as cougars. In 1993, plaintiffs decided to move from Missouri to Oregon, in part because Oregon law, subject to cer- tain statutory restrictions and local ordinances, permits the keeping of exotic animals such as cougars. See ORS 609.205 et seq. Mutchka, a female, is a South American variety; Pete Puma, a male, is a North Ameri- can variety. ORS 609.309 states the policy underlying Oregon’s exotic animal law: “It is the policy of this state that the keeping of exotic animals be regulated so as to ensure the health, welfare and safety of those animals and to ensure the security of facilities in which they are kept, so as to avoid undue physical or financial risk to the public. It is the policy of this state that regulation place no more burden upon the keepers of exotic animals than is required to accomplish the purposes expressed in this section.” Plaintiffs purchased property in Susan Estates, a small subdivision in rural Yamhill County, in an area zoned “very low density, 5 acre minimum.” There are no zoning restrictions on the type of animals that can be kept on a particular piece of property. Plaintiffs began building their home in late spring 1994. Construction of the cougar holding pen, which meets or exceeds state standards for animal care and public safety and has been approved by the Oregon Department of Fish and Wildlife, began in mid-September and was completed on October 13, 1994. Plaintiffs did not obtain the approval of the Susan Estates Homeowners’ Association board before undertaking or completing either their home or the cougar pen project. At 3:00 in the morning on October 19, 1994, plaintiffs, without notice to their neighbors, moved the cougars into the holding pen. [The neighbors had many meeting and resolutions asserting violation of the subdivi- sion covenants. Eventually the landowners brought suit for declaratory determination that they are not in violation of the subdivision covenants. There has been heavy edit- ing of the opinion.] We begin, then, with the text and context of the “residential use” provision. Article V, subsection 1(b) of the amended CCRs describes, and limits, permitted uses of property within the subdivision: “Use of the Property. Property may be reasonably and normally used for agricultural farm- ing, tree farming or residential use only.” (Emphasis added.) “Residential,” as commonly understood, means “of, relating to, or connected with res- idence or residences.” Webster’s Third New Int’l Dictionary, 1931 (unabridged ed 1993). “Residence,” in turn, means “the place where one actually lives or has his home * * *.” Id. Thus, a “residential use” is one that involves activities generally associated with a personal dwelling. Plaintiffs assert—and we agree—that keeping family pets is a “residential activity.” A 28 Animals: Welfare, Interests, and Rights See Aldridge v. Saxey, 242 Or 238, 249, 409 P.2d 184 (1965) (concluding that covenant precluding the use of property for nonresidential purposes did not preclude the land- owners from keeping 16 German Shepherds and 5 smaller dogs on their property). Plaintiffs further offered uncontradicted testimony that they keep and care for the cougars as pets and not for any commercial purpose, such as breeding or exhibiting the animals for pay. Andy Turudic described the role that the cougars play in plain- tiffs’ lives: “[They] are an integral part of our family life. We have a very strong bond with our animals. * * * They give me and my wife both immense pleasure.” Thus, although the cougars may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets. Given that the cougars are family pets, and that their presence does not present a nuisance, the maintenance of the cougars consti- tutes a “residential use” within the meaning of the amended CCRs. Defendants argue, however, that the amended CCRs permit only “reasonable” and “normal” residential uses—and assert that the keeping of cougars is neither. Defen- dants’ argument fails for several reasons. First, as a textual matter, subsection 1(b) does not refer to “reasonable and normal * * * residential use.” Rather, it states that the property may be “reasonably and normally used for [farming] or residential use only.” (Emphasis added.) Thus, defendants’ argument transforms adverbs into ad- jectives—a transformation that is particularly significant with respect to “normally” and “normal.” It is one thing to say that property shall “normally”—i.e., typically or usually—be used for farming and residential purposes. It is quite another to say that property can only be used for “normal”—i.e., presumably ordinary or decidedly non- exotic—uses. Here, plaintiffs “normally” use their property for residential uses. See Webster’s Third New Int’l Dictionary, 1540 (unabridged ed 1993) (defining “normally” to mean: “in a normal manner * * * COMMONLY, USUALLY”). See Webster’s Third New Int’l Dictionary, 1540 (unabridged ed 1993) (defining “normal” as “according to, constituting, or not deviating from an established norm, rule, or principle: conformed to a type, standard, or regular pattern: not abnormal”). Second, to the extent that defendants claim contextual support for their “reasonable and normal” use argument, they point to the language of the nuisance provision, sub- section 1(c). That reliance is, however, unavailing. Subsection 1(c) refers to “normal or reasonable” use—that is, it is phrased in the disjunctive, not defendants’ putative conjunctive. See Or.App. at ---- (slip op at 8) (setting out text of subsection (1)(c)). Thus, any use described in subsection 1(b) that is either “reasonable” or “normal” is not a nuisance under subsection 1(c); a use that is not “normal,” but is nevertheless “rea- sonable,” must be permitted. Moreover, as noted, the trial court explicitly determined that the use here was not a “nuisance” under subsection 1(c). Logically, in so holding, the court necessarily determined that the use was either “normal” or “reasonable,” or both. As noted, defendants do not contest that determination. See --- Or.App. at ---- n 11 (slip op at 9 n 11). Third, to the extent that the phrase “may be reasonably and normally used * * * for residential use only” remains ambiguous after resort to context, including subsection 1(c), the covenant is to be “construed most strictly against the covenant.” Yogman, 325 Or at 364-65. Here, that canon assumes special significance because of the con- duct of the Association, which seeks to enforce the covenant. As noted, plaintiffs have A: Pets & Housing A 29 undertaken considerable efforts to eliminate potential risks associated with keeping the cougars. Those efforts have been highly successful—so successful that the trial court found that any risk from the cougars did not rise to the level of a common law nuisance: “[T]he potential for actual injury to a person is so remote that the fear of the neighbors cannot be said to be objectively reasonable.” Nevertheless, marginal risks remain—e.g., the risk of a trespassing child thrusting his or her hand into the cage or of a stranger releasing the cougars—and plaintiffs offered to undertake additional measures that would have eliminated even that potential. But the Association refuses to approve those reasonable measures. As the trial court explained: In addition, plaintiffs have had both cougars declawed and have had Mutchka, the female, spayed. Plaintiff took those measures to further reduce any risk posed by the cougars and to eliminate the chance that Mutchka might attract wild cougars when she is in estrus. Mutchka’s spaying also eliminated any caterwauling, a loud, scream- like sound that female cougars make when they are in heat. The trial court noted: “The holding facility is very secure, though not 100% secure. It is constructed of wire mesh ‘cyclone’ weave of greater gauge than required, though the hold will admit a human hand, especially that of a child. Cement flooring and 12 inch high perimeter wall prohibit digging out or escape under the wire. The facility includes a cement ‘den’ that goes outside the wire, but is quite impen- etrable. Though there are trees nearby, the likelihood of fallen tree damage suf- ficient to breach the cage is, in my view, very remote. The door to the facility is secured by three locks.” “The principal danger of escape comes from human error. Mr. Turudic appears to be a responsible animal owner interested not only in the best interest of his animals, but also in the safety of his own family and neighbors. The likelihood of deliberate removal from the facility is very remote, at least not by Mr. or Mrs. Turudic. Likewise, the probability of an escape due to the negligence of the Turudics is remote, though possible. A procedure is followed in which the cougars are chained to the fence before the door is opened for entry. A double door or ‘sally port’ entry could be constructed which would not allow opening of the inner door until the outer door is secure. Mr. Turudic indicated his interest in adding this, but ironically, it is clear that this addition to the cage would not gain approval of the Susan Estates board. “The holding facility would not protect a person from injury if the person stuck a hand or arm through the wire. While the danger would hopefully be recog- nized by an adult, a curious child might not. Again, this potential problem could be addressed by construction of a secondary fence around the cage, but approval of the Susan Estates board would likely be required.” (Emphasis added.) In effect, the Association contends that plaintiffs’ maintenance of the cougars is not “reasonable” because of the Association’s own refusal to approve reasonable safety measures. The self-serving circularity is patent. Such a construction of subsection 1(b) cannot be squared with the “construed most strictly against the covenant” canon. We thus conclude that the keeping of the cougars in their holding pen is a permitted residential use under Article V, subsection 1(b) of the amended CCRs. That conclusion, however, necessarily depends on the premise that the cougars’ holding pen lawfully exists, and will continue to exist, on plaintiffs’ property. Consequently, we turn to the A 30 Animals: Welfare, Interests, and Rights trial court’s determination that the cougar pen must be removed from the property. [The Court finds that the Judge was wrong in demanding the holding pen be with- drawn. In conclusion the Court finds that the presence of the cougars do not violate the covenants.] Questions & Notes 1. What would you think if your neighbors had two cougars on their property? 2. Can a subdivision adopt a nuisance regulation demanding the removal of the cougars, once they are present? 3. Can cougars be family pets? Is it for the benefit of the cougars?
Pages to are hidden for
"Pets _ Housing"Please download to view full document