DATE: Saturday, June 28, 1997               TAG: 9706260252

SECTION: REAL ESTATE WEEKLY      PAGE: 04   EDITION: FINAL 

COLUMN: COMMON GROUND 

SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN 

                                            LENGTH:   59 lines

GRANDFATHERED NICE, BIG DOGS

Q. Our condominium board has been struggling with one of those pet issues. We have a rule that says that you cannot have dogs weighing over 40 pounds. We have two dogs in our community that weigh over 40 pounds, but those particular dogs don't cause any trouble and we really don't want to enforce the rule against those dogs.

We've thought about changing the rule, but we think it's preferable if potential buyers see that rule in that we would like to discourage potential owners with large dogs to not buy a unit in our condominium.

Does this pose a problem with respect to the current large dogs or any other large dogs that we allow to move in without enforcing the rule? In other words, what responsibility does our board have to consistently enforce the dog rule or amend it?

If we do, are these two dogs grandfathered?

A. We think you have almost answered your own question. One of the cardinal rules of covenant enforcement is consistency. If you fail to enforce, you eventually waive the right to do so.

You may have reached that point with your dog rule depending on the length of time these dogs have been present. The bottom line is either enforce it or change it.

Why don't you adopt a new pet rule that allows all pets subject to ejection due to unruly behavior, lack of control by the owner, and other nuisance related conduct. This is enforceable and rarely is it necessary to invoke it.

If you decide to write a new rule, the keys to success are clarity and reasonableness.

Also, if the current pet rule is contained in the recorded declarations or bylaws, it will require an amendment of that instrument which requires the signatures of 2/3 or more of the unit owners. Check with your association counsel.

Furthermore, there is an issue of liability of the board for its failure to enforce the current rule if one of the large dogs causes injury. The liability is not crystal clear, but it does make a good argument and may be excluded from coverage by your insurance.

As to your question concerning grandfathering, we believe that, depending on the length of time the dogs have been ``in residence,'' you may have waived any right to enforce.

But remember, these buyers should have received a resale disclosure document which included the rules regarding pets and they are deemed to know the rule.

If it has been over a year, you're likely to have trouble enforcing the rule unless the dog has become a nuisance, which might give the judge some additional incentive to enforce the weight rule. MEMO: G. Robert Kirkland, president of a Virginia Beach property

management consulting firm, and attorney Michael A. Inman specialize in

Virginia community association issues and are affiliated with the

Southeastern Virginia chapter of the Community Associations Institute.

Send comments and questions to them at 2840 S. Lynnhaven Road, Virginia

Beach, Va. 23452. To submit questions by phone, call 486-7265; by fax:

431-0410; by E-mail (turk(AT)norfolk.infi.net).

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