Published on: June 15, 2001
A reader recently wrote inquiring whether a Board may prohibit specific breeds of dogs which have reputations for being aggressive. The answer to this question, as one might expect from a lawyer, is, “it depends”.
At the threshold a Board cannot ban the keeping of any pet at a condominium unless there is an appropriate restriction in either the Master Deed or By-Laws. This was the holding of the Massachusetts Supreme Judicial Court in the first case decide under the Massachusetts Condominium Act. The reason is that, in general, Rules and Regulations passed by a Board can only regulate the use of the Common Areas. Only the Owners, via the Master Deed or By-Laws, can restrict the use of Units, Thus, if there is no pet restriction in the Master Deed or By-Laws, one can only be enacted by an amendment duly passed by the Owners.
As to which document such an amendment must be to, the Act permits restrictions designed to prevent interference with the Unit Owners peaceful enjoyment of the premises to be in By-Laws. All others must be in the Master Deed. Therefore, restrictions prohibiting loud noise, late playing of stereos, etc., can be in the By-Laws. Restrictions such as residential use only must be in the Master Deed.
Likely, a pet restriction would be valid if put in the By-Laws. The cautious, however, will put it in the Master Deed. This placement is, of course, only an issue if the vote necessary to amend the Master Deed is higher than that for the By-Law, which is often the case. If they are the same, then this is really a non-issue.
So you say, we won’t restrict keeping pets in a Unit, we’ll just pass a rule prohibiting them from being walked across the Common Areas. That gambit was tried when a Condominium required all pets to be carried across the Common Areas. In striking this down the Appeals Court held that a Board couldn’t do indirectly that which it couldn’t do directly. Since there was no pet restriction in either the Master Deed or By-Laws, the Board was prohibited from trying to create one by passing a rule making it impossible to have large dogs.
With that let me return to the question, can a Condominium prohibit certain breeds of dogs. If the prohibition is contained in a Master Deed or By-Law amendment passed by the Owners, there should be little problem. On the other hand, if the Master Deed or By-Laws allow pets subject to the approval of the Board the issue becomes more questionable. It is possible that a Court might consider this as the Board creating a ban where the documents are permissive. That is what happened in another state when a Board banned dogs over a certain size. However, it is equally as possible that a Court would see this as a valid exercise of the Board’s rule making authority, particularly if there was accepted evidence to support the ban.
Again the safest course would be for the ban to be an amendment to the Master Deed or By-Laws. With that, not only would it likely withstand legal challenge, it would also be easier to administer as it would reflect the will of the majority.