Cohousing-L Mailing List: Cohousing and Dog Catchers

[R Philip Dowds (rpdowds]

Folks —

In a prior thread, the question arose, Under what circumstances is the HOA or 
Condo Association responsible for its members' bad behavior?  Specifically, 
this was about the duties or liabilities of the Association relative to a 
member's (unit owner's) (possibly) vicious dog, who (might) annoy or bite other 
members, or visitors, or even people across the street.  But it could be about 
almost any aspect of member bad behavior.

I raised this issue with our Cornerstone Cohousing condo attorney, and 
summarize herewith his opinions.  Please keep in mind that his opinions are in 
the context of Massachusetts law, and may not fully apply to other 
jurisdictions.
In general, condo associations (HOAs) are NOT responsible for the bad behavior 
of their owner / members.  Maybe said members do not supervise their pets, or 
are dealing drugs, or cheating on their taxes or wives … but it is NOT the 
responsibility of the Association to detect, report, or resolve these problems. 
 HOWEVER …
HOWEVER:  The Association is embodied in, and represented by, its annually 
elected Managing Board.  Said Managing Board is assigned both powers and duties 
by the master deed, the bylaws, and by the jurisdiction(s) in which it is 
franchised.  In some instances, the Managing Board may bear liability for 
improper exercise of powers, and/or dereliction of duty.  SIDEBAR:  In most 
condo docs, the Association itself indemnifies the individuals elected to the 
Managing Board, so while there may be communal risk in how Managing Board acts, 
there is no personal risk to the Board members.  AND SO …
AND SO:  Under some circumstances, and in specific instances, the MB and 
Association might bear some liability.  Here are some possible examples ...
(1) The Association adopts no policies re pets one way or the other.  OK.  But 
by virtue of the condo docs, MB may have some broad and general responsibility 
for ensuring "beneficial use", or "quiet enjoyment", or "domestic tranquility" 
of life in the condo.  Now there's this nasty dog that is bothering everybody.  
Maybe MB can be held accountable for not doing anything.  Or …
(2) The Association does indeed adopt a pet policy, and assigns the 
responsibility for monitoring and enforcement to MB.  The dog goes wild, and 
bites a visitor.  The visitor might have a claim against MB (which is 
indemnified by the Association, so the claim is really against the community as 
a whole).  The validity of this claim might be influenced by …
(2a) Foreknowledge of the nasty dog.  If it is generally known that Owner X 
lets his wacky pit bull run loose, that pit bulls are dangerous, and that 
people are having bad encounters with this dog — then the duty of MB to enforce 
pet rules (or "domestic tranquility") is somewhat enhanced.
So what's important here?  In general, Associations and Managing Boards have no 
obligation to be dog catchers or police officers.  But in particular, depending 
on what powers and duties are delegated to MB, and on the specifics of an 
individual case or claim, the Association *might* be found liable for some kind 
of problem.  Specifics are very important.  Like for instance, did the problem 
occur on or off the property of the Association?  Did the harm occur to a 
member (owner), or to a non-member?  Did MB send, or not send, a warning letter 
to the miscreant Owner?  With a copy to the dog catcher of the jurisdiction?  
And so on.  Generalities about liability are not very useful.  Common sense, 
good faith, and reasonable due diligence are our most reliable defenses.

All of which is consistent with my previous conclusion.  If you want to be 100% 
protected against all the liabilities of life, then do not do anything.  Ever.  
But if you do something, then try very hard to have no assets, which are always 
a magnet for litigation.  Best of all, do not exist.

R Philip Dowds AIA
Cornerstone Cohousing
175 Harvey Street, Unit 5
Cambridge, MA 02140
617.354.6094