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Subject: Burden and disclosure of proof when reporting a violation
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JohnR45
(Delaware)

Posts:7


07/10/2018 10:32 AM  
Dear Sirs,

I have an ongoing issue with a neighbor that has an aggressive dog that bit me last year and since then the condominium HOA board ordered that the dog be muzzled. The neighbor has not complied with the muzzle order, I later reported a direct encounter with the dog without the muzzle. The Board responding they would review my complaint indicating it initially as alleged, they then proceeded to get the neighbors version, they then discussed it at an executive session. After this process I asked what had been done and if they validated my report or if it was still considered as ‘alleged’. The indicated they wrote the neighbor to remind them of the muzzle order and told me to keep reporting further incidents. When I asked whether or not they validated the incident or if it was still was considered ‘alleged’, they did not confirm this and only responded that they cannot disclose what is discussed in ‘executive sessions’. So, my inference from this experience is that it appears that I need to provide additional proof when reporting these incidents such as a picture or video.

Subsequently, I have two questions.

1. When reporting a violation does the burden of proof completely rest on the person reporting the violation?

2. What can the HOA board disclose or is expected to disclose regarding a violation report including any evidence it obtains or verification it has performed?

I greatly appreciate any input you can provide.
AugustinD


Posts:1045


07/10/2018 12:01 PM  
I am so sorry about the dog bite. Unfortunately, and in my opinion, I think you have to put yourself in the shoes of the adjudicators here (the board). They do not know what the truth is until they have hard evidence. If the Board is to be on solid legal ground, it will usually need witnesses, evidence, et cetera. In this instance, I think you are stuck providing proof that the dog was (is) not wearing its muzzle. You want to document every time you see the dog without a muzzle, so that the HOA's legal case is stronger.

This subject comes up pretty often here and nationwide as well. You could google on {"one bite rule" HOA condominium} and see how boards handle this situation and what the latest legal advice is on it. Increasingly I think dogs that bit are out of luck and may find themselves evicted or with extreme restraints.

Also, did you report the dog bite to your municipality or county? Many local governments have strict laws on this and can help.

Maybe have your cell phone with you at all times to grab a picture?
KerryL1
(California)

Posts:5389


07/10/2018 12:17 PM  
I'm on our Board and we require corroboration of every rules violation. In our case the one who confirms the violations is usually a security officer or a member of our management staff.

In smaller HOAs maybe it would be a board member or unbiased neighbor. But, Augustin is right. Have your phone camera at the ready and take a pic.

I'd say your board was correct to not reveal the details of the hearing.

And also follow his advice to report this animal biting you to the correct municipal authorities.
SheliaH
(Indiana)

Posts:2206


07/10/2018 12:21 PM  
Your first question might depend on what's being reported. For example, if someone made an exterior change to his/her home without getting prior authorization from the board, it may be enough to go to the person's house and see what's there.

It is true that executive sessions usually don't have to be disclosed, as they're used to discuss sensitive association matters (typically those that may or already involve some sort of legal action). They're also used to hear appeals by homeowners who've received violation notices, so I'm a little surprised they haven't already had one on this issue. They could have had both of you attend, listen to both sides and consider what additional documentation you or he had (e.g. time and date stamped photos you took of the dog sans muzzle). If they haven't had such a hearing, ask for one.


Boards usually don't take legal action on what are usually disputes between neighbors unless misuse or damage to the common area is involved and/or the issue involves several neighbors. You haven't said if other people have had conflicts with this dog, so right now, I would say the burden of proof is with you (you can't expect the board to sit in front of your house or the neighbor's waiting for Cujo to show up).
They told you to keep reporting it, so start there - and this time, get some photos of this critter. You might also want to talk to other neighbors to see if they've also had issues with this dog and ask them to submit statements on your behalf (you may need them again if this winds up in court). That might persuade the board to finally take action because now several people are involved.

In addition to notifying your board, you might also want to contact your local Animal Control and perhaps the non-emergency number of the police department. They can't sit at your house and wait for this animal either, but if there are a number of complaints, that could warrant a visit - if you're lucky, the owner and dog will be caught red handed. If a dog is deemed dangerous, some cities will require the owner to give it up or issue heavy fines (money can be a great motivator in getting someone to straighten up and fly right).
KerryL1
(California)

Posts:5389


07/10/2018 12:37 PM  
Usually agree with Sheila, but we never have the one who complains come to hearings. These always are confirmed by a staffer, who also can write in the report that they were called by some neighbors to complain about a noisy party after 10PM on a neighboring condo's balcony. There' just no need for any of those neighbors to attend the hearing as the violation already was confirmed. The alleged violator sometime attends, sometimes not.

Ditto barking dogs; dogs off leash, items in violation of our docs on balconies, e.g., laundry, etc., etc.
GenoS
(Florida)

Posts:2228


07/10/2018 12:45 PM  
Kerry, do the violation reports name the original complainer or just say something like, "problem observed on such-and-such a date and confirmed by the maintenance/security people"?
KerryL1
(California)

Posts:5389


07/10/2018 3:15 PM  
The officers write on an Incident Report they received a complaints, let's say a nose nuisance. They write the names/unit #s of the residents who complained and that they too heard the loud noise. Most often, in these cases, the office goes to the allege violator's unit and tells them to quiet down and move off their balcony into their unit. Usually there's compliance, which is noted in the Officer's report. If there isn't compliance, the officer tries one more time and if no compliance then, advises the resident(s) to call the police. Thiss only has happened with one resident over the past 12 years.

If I have a complaint, I write a Violation Report about, say, bicycles on a balcony for days and write that unit # & mine and sign it. That form says my report is confidential. A staffer will come to my unit to confirm the violation and the PM will send a "courtesy letter" asking the Owners to have the bikes removed per Rule & Reg xx.

In both types of cases, the HOA becomes the entity that's complaining and there's no need for the resident who makes the complaint to get involved.

This seems to work out well where the complainer doesn't have to worry about retaliation; the violations, which we don't want, gets cured.




KerryL1
(California)

Posts:5389


07/10/2018 3:17 PM  
The officers write on an Incident Report they received a complaints, let's say a nose nuisance. They write the names/unit #s of the residents who complained and that they too heard the loud noise. Most often, in these cases, the office goes to the allege violator's unit and tells them to quiet down and move off their balcony into their unit. Usually there's compliance, which is noted in the Officer's report. If there isn't compliance, the officer tries one more time and if no compliance then, advises the resident(s) to call the police. Thiss only has happened with one resident over the past 12 years.

If I have a complaint, I write a Violation Report about, say, bicycles on a balcony for days and write that unit # & mine and sign it. That form says my report is confidential. A staffer will come to my unit to confirm the violation and the PM will send a "courtesy letter" asking the Owners to have the bikes removed per Rule & Reg xx.

In both types of cases, the HOA becomes the entity that's complaining and there's no need for the resident who makes the complaint to get involved.

This seems to work out well where the complainer doesn't have to worry about retaliation; the violations, which we don't want, gets cured.




MelissaP1
(Alabama)

Posts:7477


07/10/2018 5:07 PM  
Did I miss something here? Why is the HOA involved in a dog bite situation? They are NOT animal control. Animal control should ALWAYS be notified of a dog bit first and foremost. Maybe the HOA can report it to Animal Control, but they really can't enforce the laws. If I was in this HOA, I'd just call Animal Control each and every time. Done.

Former HOA President
GenoS
(Florida)

Posts:2228


07/10/2018 5:42 PM  
Posted By KerryL1 on 07/10/2018 3:15 PM
In both types of cases, the HOA becomes the entity that's complaining and there's no need for the resident who makes the complaint to get involved.

This seems to work out well where the complainer doesn't have to worry about retaliation; the violations, which we don't want, gets cured.

Thanks, that's about how we'd like to go about it. No MC or Security, though, so it might be a bit more difficult for us.
KerryL1
(California)

Posts:5389


07/10/2018 5:56 PM  
Yes, it would be tougher because directors would have to be willing to confirm residents' reports of violations. Some would be so obvious that there would't be any problems, especially with photo evidence.

I'd think in detached-home situations, perhaps an ARC could do some of this work.
KerryL1
(California)

Posts:5389


07/10/2018 6:56 PM  
Melissa in my condo HOA with elevators, ANY violation involving a dog creates a call to hearing, potential fines, and potential actions re: an aggressive dog, e.g., ordering a muzzle. Our rules, we believe, encourage dog Owners to keep control of their pets. We have had one bite incident in the 12 years I've been on the Board. Among our 200+ units, I'd say about 40-50% have dogs.

OBVIOUSLY, animal control should be called TOO in the cases of bites

The point is that not all HOAs are the same and your opinion--to ONLY call animal control-- isn't practical in my HOA and maybe many others.
JohnR45
(Delaware)

Posts:7


07/10/2018 11:23 PM  
First of all thanks to everyone who replied so quickly to my initial post. :-)

Here is some additional information regarding my situation.

A police dog bite report was filed when I was bitten.

The incident occurred in a common area, a shared hallway between our two units. It is the only entrance /exit to my unit and my neighbors, the owners of the dog.

When I first complained a muzzle order was issued, the owners appealed, there was a hearing where the owners indicated that the dog had some known behavior issues and that the owner’s proposed solution was to carefully avoid taking out the dog while me or my family are in the hallway. The Board attorney was present at this meeting and the attorney later sent a letter indicating that the Muzzle order be maintained although gave it a year duration and encouraged the owner to get the dog retrained.

Since the no-muzzle incident I reported there have been two additional incidents with the dog acting aggressively toward a visitor entering the hallway and another encounter with me were the dog charged a couple times at me at one point pulling on the leash with enough force to briefly pull the owner down to the floor (!). The dog is approx. 100lbs and appears to react aggressively to anyone in the hallway when he is present with his owner. The owners are in their late sixties and do not appear to have full physical control of the dog and are not able to control the dog’s aggressive behavior. I also have not seen any sign of further training to correct the behavior issues.

I’ve reported the subsequent aggressive incidents to Animal Control and they’ve appended them to my initial bite report. I reported it to the HOA Manager, and the HOA attorney responded informing me that there will be a new hearing to review the issue again in light of the recent events and that a new determination will be made after the hearing.

Since the incident with no muzzle I have taken some pictures of the dog without the muzzle although they are not completely clear. In addition I have various recordings of the dog loud barking that can be heard from the hallway. However I do not have evidence of the dog acting aggressively. Not sure if this would be enough to get a better determination including having the dog removed from the community.

One piece of advice I have been given is to refer to the nuisance and stress that this situation represents me and my family including the quality of life issues related to having this aggressive dog directly across me and the risk I have of encountering it in the shared hallway which is the only entrance/exit for both me and my neighbor. I was told that this relates to common law known as ‘tort of nuisance’.

I would greatly appreciate any advice on how to prepare for this hearing as well as opinions on what direction the Board could be headed next.


AugustinD


Posts:1045


07/11/2018 6:00 AM  
-- John, it sounds like you have been about as thorough as possible. This is great.

-- That the HOA attorney is so involved is also great.

-- I would prepare a written presentation with photos for the board, listing all the reasons you think the board should take greater action. This will help the board justify any legal actions.

-- You are correct in your assertions about what the case law says. Also check your HOA's/condo's governing documents for what they say about "nuisance." Quote whatever is in the governing documents back to the board as part of your written presentation, noting you feel the dog's presence is a nuisance enormously detracting from the quality of your life and your guests' lives.

-- I would bear in mind that, while you may be in the right here, the board and the HOA attorney are obliged to respect the rights of the dog owner. It is a big deal to evict a dog. Have the dog owners crossed the line to the point that the board should order the dog off the premises? Maybe.

SheliaH
(Indiana)

Posts:2206


07/11/2018 6:55 AM  
To start with, you will need some CLEAR photos of the dog without the muzzle and they do need to be time and date stamped. If the owners don't seem capable of controlling the dog, you might want to get video of that - use your cell phone.

As I said earlier, you'll also need to talk to your neighbors and see if they've had similar problems - if so, ask them to attend the hearing and make statements on your behalf. They should be prepared to list dates and times of the confrontation as well. Right now, this still looks to be a dispute between two sets of neighbors - unless and until it involves more people, there may not be much more the board can do. Remember, neighbors can enforce CCR violations against each other - in the end, you may have to file a nuisance lawsuit against this guy and see what a judge has to say.

Meanwhile...if the owners said they were going to get more training for the dog, they should be asked to provide documentation of the same. Retraining dogs can take time, so you may also ask them what they've done to reinforce the training.

Speaking of training, how about finding a local dog trainer and have him or her stop by to observe this dog's behavior. Having an expert talk about his/her observations could persuade the board to do something more forceful. Perhaps someone from the Humane society can also help.

Another thought - is it possible that the memory of that incident has you so scared of this dog that your behavior might be influencing him? Here's a link to a story that talks about aggressive dogs and how to reduce the chances of getting bit and one of the things it said was not to run away, but back away slowly. I agree you shouldn't have to go through all this drama, but until the dog is gone or the owner figures out how to best address this, these steps will have to do:

https://www.cbsnews.com/news/if-aggressive-dog-threatens-you-know-what-to-do/



JanetB2
(Colorado)

Posts:4108


07/11/2018 12:06 PM  
At the meeting hopefully the BOD Attorney can stress the need for a muzzle to the Owners by reminding them that if the dog bites more people or has further aggressive actions that the Police and Animal Control could take the matter into their hands and ultimately have the dog put down. He could stress that the muzzle is also for the Pet’s Protection. Sometimes when you make an owner look at the situation as protecting their pet, you can get better positive results.
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