Can Pit Bulls Remain In Condo Associations?

Written by Posted On Monday, 03 March 2014 09:30

Approximately 5 million Americans are bitten by dogs each year. In most states, if your dog bites someone, you are liable for any damage caused. In a number of states, such as Maryland and Virginia, the so-called "one bite" rule is the law. That means that the person who was bitten must prove that the dog was dangerous or that the bite was due to the negligence of the dog owner.

In other words, if your dog has not bitten anyone in the past, it will be difficult to prove liability.

However, at least in one State, the one bite rule has been rejected when the dog is a pit bull. The Maryland Court of Appeals ruled that pit bulls are inherently dangerous, and a dog owner - and a landlord who allowed the dog to reside in a rented apartment - could be held strictly liable.

Clifford - the pit bull - escaped twice from what the court called an "obviously inadequate small pen" and attacked at least two boys at different times on the same day. One of the boys underwent over 5 hours of surgery to repair his femoral artery.

The trial court determined that the one-bite rule applied. However, the Court of Appeals reversed, and established a strict liability standard in respect to the owning, harboring or control of pit bulls. According to the Court, "it is not necessary that the landlord (or the pit bull's owner) have actual knowledge that the specific pit bull involved is dangerous."

How does this impact landlords, condominiums and homeowner associations? Many associations and landlords prohibit any animal, so the court case is obviously academic. However, the case is very important for those institutions that permit dogs. The court made it clear that any person who has the right to control the pit bull's presence would be held liable for any such dog bite.

And community associations clearly "control" the dog's presence. Most associations have rules regarding how dogs (and other animals) must be treated, including that dogs must be on a leash while on community property, the dog walker must pick up and discard any dog waste, and in some associations dogs must not disturb other owners or tenants.

The Maryland legislature attempted to modify or even repeal the court opinion. However, to date, there is a deadlock between the House and the Senate, and no action was taken. Thus, the law stands: pit bulls are inherently dangerous.

What should landlords and community associations do? First, contact the master insurance carrier to determine if your insurance will cover you in the event an owner (or tenant's) pit bull bites someone.

Next, it should consider whether to adopt rules. Such rules could range from outright prohibiting pit bulls in the complex, to requiring those dogs to be muzzled when on common grounds.

Pitt Bull

Should owners who currently have pit bulls be grandfathered? Clearly it would be unfair to those owners to suddenly have to force them to remove their dog. One possible solution: require (by rule) that such owners indemnify and hold the landlord or association harmless should their dog bit and injure someone. You should also insist that each dog owner provide proof that they have their own adequate insurance.

This year, the Maryland legislature may resolve this matter. Last year, the Senate judiciary committee, chaired by Senator Brian Frosh, passed a measure that removed the one-bite rule as against all Maryland dog owners. The bill - if enacted - would also have protected landlords (and presumably community associations) from liability. However, the House of Delegates balked and the court opinion was not repealed nor modified.

This is a highly controversial issue. The American Society for Prevention of Cruelty to Animals (ASPCA) issued its opposition to the Maryland court decision. Even Maryland Governor O'Malley recently commented that it was not the dog - but the dog's owner - who creates the way the dog will behave.

Does this only impact Maryland landlords and community associations? At present, the answer is yes. The laws in Virginia and the District of Columbia - while accepting the one-bite rule - do not protect a dog owner who allows his dog to be off the premises without a leash. Such conduct would be considered negligent.

Furthermore, those laws do not distinguish between breeds of dogs; whether your dog is a pit bull or a german shepard, the same law applies to you. Indeed, for examplethe Fairfax County, Virginia website specifically states that "no animal will be considered dangerous because of its breed".

If a tenant or condominium owner's dog bites and injures someone in other States, can the association or the landlord be held liable? It depends on the facts and of course on your own State law. If the association or a landlord has a rule requiring all dogs on common property to be leashed, and takes no action against a dog owner who consistently allows his pet to run loose, the association or the landlord may be held responsible for any injury.

All community associations and all landlords must review their dog policies as well as their insurance policies. The recent Maryland court case should be a wake-up call.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

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