By: Benny Kass
DEAR BENNY: What can be done about dogs that bark all the time? I live in a gated development in a homeowners association. The board says they cannot do anything about it, but I don't see how that is possible. What is the board for? --Bill
DEAR BILL: Good question about what the purpose of a board of directors is. Legally, they are the equivalent of the executive branch of any government.
Their function is to manage, operate, and enforce the legal documents of your association.
But community associations can be big business; often, the budget of a condo or an HOA is larger than many commercial establishments. So board members often find themselves not capable of handling the affairs of their association.
I am confident that your legal documents prohibit excessive noise and nuisances. How do you prove that the barking dogs are violating the noise and nuisance requirements of your association?
That's not easy. But if you have a number of owners who are prepared to complain, that will send a message to the board that the owners who elected them to office want them to enforce the operational documents.
In many states, however, the judges in a lawsuit will not interfere with the actions (or inactions) of a board, even if they are making a mistake. This is known as the "business judgment rule."
The court decisions say that judges will not second-guess what a volunteer board is doing, unless of course there are criminal violations -- such as stealing from the association or not disclosing that a board member has an interest in a company doing business with the association.
Some states have rejected the business judgment rule. In the District of Columbia where I practice, the courts have adopted a "reasonableness" test to determine whether the actions of the board are reasonable.
So, if your state has the business judgment rule in place, the board may take the position that we just don't want to get involved.
If that's the case, what should you do? Have you talked with the owners of those barking dogs? If they don't seem to care, I believe you have only three alternatives: (1) File a lawsuit against those owners claiming they are creating a private nuisance; (2) put up with the noise; or (3) move out of the community.
On the other hand, if your state has adopted the reasonableness test, you may have a cause of action against the board for not enforcing the rules. But in either case, the burden will be on you to prove that there is a nuisance and a noise.
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column.