The back story
Polly and Kelvin, two African grey parrots, lived with their owner, Mary, in a condominium in Monmouth County. As one might expect, they made bird noises which could be heard outside their home and their chatter and whistles annoyed the other residents.
The property manager for the Condominium Associate wrote to Mary asserting that she was in violation of two restrictions in the Master Deed. One which provided that:
No bird, reptile, or animal of any kind shall be raised, bred, or kept in any Unit or anywhere else upon the Property except that dogs, cats or other household pets are permitted, not to exceed two in the aggregate, provided that they are not kept, bred or maintained for any commercial purpose, are housed within the Unit and abide by all applicable Rules and Regulations. No outside dog pen, runs or yards shall be permitted.
The other stated that “[n]o noxious or offensive activities shall be carried on…which may be or become an annoyance or nuisance to the other residents…” Mary was given two weeks to remove the birds or the Board would begin assessing a $10.00 per day fine against her unit.
Mary didn’t comply to that notice or several others, including one from the Association’s attorney. The dispute wound its way through alternative dispute resolution before landing in court and being re-directed to non-binding arbitration before a retired judge. That judge’s decision in favor of the Association was rejected by Mary. The parties then agreed to let a trial Judge decide the issue on the papers.
Blame it on the Realtors
The Association presented the trial judge with a certification from the attorney which drafted the Master Deed containing the restrictions at issue. He explained that the Master Deed was originally drafted to bar all pets. However, the exclusive realtor raised a concern that such a prohibitation would be problematic because many prospective purchasers would want to be able to have a dog or cat. Thus, the absolute prohibition was modified. Despite that, he said, the Association’s position was consistent with his intent as the scrivener of the document - - “no bird…mean[t] exactly that, no bird.”
But aren’t Polly and Kelvin household pets?
Mary’s lawyer argued that the word “no” modified “the compound subject birds, reptiles, and any animals” and that the exception for “dog, cats, and other household pets” modified the compound subject, permitting unit owners to have dogs, cats, birds, reptiles, and any animals kept as household pets. In other words, “every single animal in the animal kingdom [is prohibited], except for household pets” like Polly and Kelvin.
Pets can be expensive but isn’t this a little ridiculous.
The trial judge agreed with the Association, and entered judgment in their favor for $37,337.91, representing fees of $24,375.00; costs of $1,561.58.00; arbitrator’s fees of $2,590.86; expert fees of $3,480.47; and fines of $5,330.00 for defendants’ non-compliance, for which defendants were jointly and severally liable. An appeal of that decision followed.
A bird’s eye view: maybe it was the lawyer’s fault.
After determining that the restriction in the Master Deed was “susceptible to at least two meanings” and, therefore, ambiguous, the Appellate Court concluded that the only limitation on the keeping of pets was that the pet be a dog, a cat, or other household pet as that term is commonly understood. Pursuant to Division of Fish and Wildlife regulations, exotic, endangered, or dangerous species of birds, reptiles, and animals are either prohibited from being kept as pets or require a permit to possess as pets. Since an African grey parrot can be kept as a pet with a permit the Court said it was abundantly clear that Polly and Kelvin were household pets that may be kept in Mary’s condominium unit.
A lesson to learn?
This is an example of one more piece of information that you should encourage your potential buyers to obtain. You should consider suggesting that anyone buying a condominium who has pets (or is considering getting a pet) review the Master Deed to be sure they’re permitted. Otherwise you may find yourself chasing your tail in the midst of an expensive lawsuit.
Polly and Kelvin, two African grey parrots, lived with their owner, Mary, in a condominium in Monmouth County. As one might expect, they made bird noises which could be heard outside their home and their chatter and whistles annoyed the other residents.
The property manager for the Condominium Associate wrote to Mary asserting that she was in violation of two restrictions in the Master Deed. One which provided that:
No bird, reptile, or animal of any kind shall be raised, bred, or kept in any Unit or anywhere else upon the Property except that dogs, cats or other household pets are permitted, not to exceed two in the aggregate, provided that they are not kept, bred or maintained for any commercial purpose, are housed within the Unit and abide by all applicable Rules and Regulations. No outside dog pen, runs or yards shall be permitted.
The other stated that “[n]o noxious or offensive activities shall be carried on…which may be or become an annoyance or nuisance to the other residents…” Mary was given two weeks to remove the birds or the Board would begin assessing a $10.00 per day fine against her unit.
Mary didn’t comply to that notice or several others, including one from the Association’s attorney. The dispute wound its way through alternative dispute resolution before landing in court and being re-directed to non-binding arbitration before a retired judge. That judge’s decision in favor of the Association was rejected by Mary. The parties then agreed to let a trial Judge decide the issue on the papers.
Blame it on the Realtors
The Association presented the trial judge with a certification from the attorney which drafted the Master Deed containing the restrictions at issue. He explained that the Master Deed was originally drafted to bar all pets. However, the exclusive realtor raised a concern that such a prohibitation would be problematic because many prospective purchasers would want to be able to have a dog or cat. Thus, the absolute prohibition was modified. Despite that, he said, the Association’s position was consistent with his intent as the scrivener of the document - - “no bird…mean[t] exactly that, no bird.”
But aren’t Polly and Kelvin household pets?
Mary’s lawyer argued that the word “no” modified “the compound subject birds, reptiles, and any animals” and that the exception for “dog, cats, and other household pets” modified the compound subject, permitting unit owners to have dogs, cats, birds, reptiles, and any animals kept as household pets. In other words, “every single animal in the animal kingdom [is prohibited], except for household pets” like Polly and Kelvin.
Pets can be expensive but isn’t this a little ridiculous.
The trial judge agreed with the Association, and entered judgment in their favor for $37,337.91, representing fees of $24,375.00; costs of $1,561.58.00; arbitrator’s fees of $2,590.86; expert fees of $3,480.47; and fines of $5,330.00 for defendants’ non-compliance, for which defendants were jointly and severally liable. An appeal of that decision followed.
A bird’s eye view: maybe it was the lawyer’s fault.
After determining that the restriction in the Master Deed was “susceptible to at least two meanings” and, therefore, ambiguous, the Appellate Court concluded that the only limitation on the keeping of pets was that the pet be a dog, a cat, or other household pet as that term is commonly understood. Pursuant to Division of Fish and Wildlife regulations, exotic, endangered, or dangerous species of birds, reptiles, and animals are either prohibited from being kept as pets or require a permit to possess as pets. Since an African grey parrot can be kept as a pet with a permit the Court said it was abundantly clear that Polly and Kelvin were household pets that may be kept in Mary’s condominium unit.
A lesson to learn?
This is an example of one more piece of information that you should encourage your potential buyers to obtain. You should consider suggesting that anyone buying a condominium who has pets (or is considering getting a pet) review the Master Deed to be sure they’re permitted. Otherwise you may find yourself chasing your tail in the midst of an expensive lawsuit.
-Dan Posternock
***The information included in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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