SUPERIOR COURT RULES DAILY FINES REASONABLE AGAINST PIGEON FEEDING UNIT OWNER

Published on: January 11, 2011

Owners of a Boston condominium had to deal with a messy situation caused by a unit owner.  Between 2006 and 2008, the unit owner spread birdseed in and around the condominium’s common areas but mostly on the public sidewalk approximately 200 times.  It was not normal feeding, but rather scoops of bird seed at a time.  The condominium had asked the owner repeatedly to stop feeding the birds, as the birdseed was attracting a significant number of pigeons and rodents, and their droppings, to the property.

The condominium began fining the unit owner $25.00 a day in the hope that this would curb his behavior, and then, the condominium increased the fine to $50.00 a day.  The unit owner refused to stop, contending he had a right to feed pigeons on the public sidewalk in front of the building.

Then the condominium filed suit to recover the fines.  The unit owner obtained pro bono counsel, litigated the matter heavily, and refused to settle the dispute on reasonable terms.  He repeatedly insisted that it was his right to spread birdseed on the sidewalk, irrespective of how this was affecting the people and property around him.

On December 20, 2010, the unit owner’s pigeons came home to roost when the Suffolk Superior Court (Fahey, J.) ruled in favor of the condominium on summary judgment.  The Court awarded the condominium $53,024.15, in attorney’s fees, and $8,685.00 in fines and fees.

The Court found that the condominium had the authority under the master deed and declaration of trust to levy daily fines against a unit owner for misconduct.  The Court rejected the unit owner’s argument that the fine was illegal because no rule or regulation specifically prohibited bird-feeding.  The decision found that like statutes, master deeds, declarations of trust, and bylaws need not be so specific as to identify every human action.

The Court also rejected his contention that even if the condominium could fine him for spreading birdseed on condominium property, it could not fine him for spreading birdseed on the public sidewalk, because doing so would be an illegal attempt to regulate a public sidewalk.  The Court found that regardless of its location, the unit owner’s bird-feeding directly impacted the condominium complex.

The Court also found that even if the unit owner believed the fines were illegal, he had no right to protest them by refusing to pay.  The Court stated that rather than engage in self-help, a unit owner must pay the assessment and then seek reimbursement in a separate action.  Additionally, the Court noted that the obligation to pay common expense assessments such as fines is absolute, and no unit owner may be excused from such payment.

The Court also found that the daily fines were reasonable because the unit owner had notice and a reasonable opportunity to comply with the restrictions.  Having such notice, the Court noted, he could have easily avoided fines by refraining from bird-feeding.  Additionally, the Court noted that as soon as the unit owner agreed to stop, the condominium stopped the fines.  Furthermore, the Court found that the fines were reasonable because they were necessary to preserve the financial integrity of the condominium.

Attorneys Edmund Allcock and Robert Nislick of Marcus, Errico, Emmer & Brooks, P.C. handled the case on behalf of the condominium.

Robert Nislick is an associate at Marcus, Errico, Emmer & Brooks, P.C., and specializes in condominium litigation.  If you would like further information please contact Robert Nislick at rnislick@meeb.com or 781-843-5000 (152).  For a copy of the Decision please click here.