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By Alan Nochumson, Esquire* and and Daniel Levine**
Residents of a planned community are subject to the rules and regulations of a homeowner's association which attempts to police the interactions between the residents in the planned community.
In McMahon v. Pleasant Valley West Association, the Commonwealth Court, however, refused to hold an association liable for failing to protect a resident in the community from being attacked by dangerous dogs owned by other residents in the community.
THE BITE
In McMahon, a couple owned two pit bulls in a planned community located in Jim Thorpe, Pa.
After the roommate of the owner of the adjacent property complained at a meeting of the association' board of directors that the pit bulls were terrorizing other residents in the planned community, the association ordered the couple, in writing, to confine the pit bulls to their property and otherwise to keep the dogs on a leash as required by its rules and regulations in effect at that time.
Several months later, the adjacent owner was standing in his driveway loading his car when he was attacked and injured by the dogs. The dogs were unleashed and ran directly from the couple's property onto the adjacent property.
THE LAWSUIT
Shortly thereafter, the adjacent owner filed suit against the association, among others, under a negligence theory for the injuries he allegedly suffered during the attack.
At the trial court-level, the association filed a motion for summary judgment seeking dismissal of the lawsuit primarily on the grounds that the association lacked any duty whatsoever to implement or enforce rules or regulations concerning the behavior of the dogs while they were located on the couple's private property.
The trial court thus had to decide whether an association which has the power to regulate animals within its community, but elects not to do so, has a duty to protect residents within the community against dangerous dogs owned by other residents.
The trial court noted that several other jurisdictions have recognized an association's duty to exercise due care for its residents' safety in areas under its control and that some of these jurisdictions have held that a dangerous condition includes the presence of a vicious dog where the association has knowledge of the dog's dangerous propensities and a right or duty to control the dog's presence.
Nevertheless, the trial court refused to find such a duty and entered summary judgment in the association's favor and against the adjacent owner.
The trial court first noted that the "[a]ssociation did not own, control or manage the dogs, the property where they were kept, or the premises where the alleged attack occurred."
Next, the trial court openly questioned whether the association had the right to remove the couple and their dogs from the planned community. The trial court reiterated that, at most, the association had the authority, through Pennsylvania's Uniform Planned Community Act and the association's governing documents, to regulate the couple's behavior in maintaining the dogs solely through written warnings, fines, or restrictions on the use of the common facilities. The trial court reiterated that the association did not possess the right to remove the couple or their dogs from the planned community.
The adjacent owner then appealed the trial court's ruling to the Commonwealth Court.
The Commonwealth Court reviewed the affirmative duties owed by a homeowners' association to its residents as summarized by the "Restatement (Third) of Property (Servitudes)."
According to the "Restatement," an association owes the following affirmative duties to its residents: to use ordinary care in managing the community under its control; to treat its residents fairly; to act reasonably when exercising its discretionary powers and in making and enforcing its rules; and to provide its residents with reasonable access to information about the association, the common property, and the financial affairs of the association.
The Commonwealth Court found the duty suggested by the adjacent owner was not supported by the "Restatement." In doing so, the Commonwealth Court stressed that any such duty on the part of the association was limited to policing the conduct of the couple and their dogs in the common elements of the planned community, not on their private property.
The Commonwealth Court also rejected the adjacent owner's attempt to create a private cause of action under Pennsylvania's Dog Law.
The Dog Law provides that it is the duty of every police officer, State dog warden, employee of the Department of Agriculture or animal control officer to seize and detain any dog which is found running at large upon the property of an individual other than the owner of such dog and unaccompanied by the owner.
The Commonwealth Court concluded that, even if the association had a duty to report the pit bulls under the Dog Law, the state legislature did not intend to create a private action for violations of the statute.
LESSONS LEARNED
The Commonwealth Court's ruling in McMahon really shows how limited associations are in policing planned communities. While associations theoretically serve as a quasi-government function for residents, they ultimately lack the power to police beyond the common elements. As explained by the Commonwealth Court, even in the common elements, associations are somewhat powerless in effectuating justice. In McMahon, the Commonwealth Court pointed out that the association lacked the authority to physically remove the couple or their dogs from the planned community. The reason is simple - they owned their property. The result in McMahon may have been different if the couple leased their property. Under that scenario, the owner of the property may have been forced by the association to evict the troublesome tenants. By owning the property, however, the best the association in McMahon could do was to fine the couple and, if they failed to pay, to foreclose on the debt then owed on the property, a rather costly endeavor for an entity which probably has limited funds to begin with.
* Alan Nochumson is the sole shareholder of Nochumson P.C. where he specializes in real estate, litigation, employment and labor, and land use and zoning. Mr. Nochumson regularly speaks at and writes for trade and professional associations, local universities, and adult education programs on issues commonly confronted by businesses, individuals, and professionals. Mr. Nochumson is also President of Bear Abstract Services where he offers comprehensive title insurance, title examination, and closing services for transactions ranging from simple residential agreements of sale to complex commercial projects. He may be reached by telephone at (215) 399-1346 or by e-mail at anochumson@nochumson.com.
** Daniel Levine is currently a third-year student at Drexel University’s Earle Mack School of Law and in the Business and Entrepreneurship Law Concentration. Mr. Levine, through Drexel University’s co-op program, is interning with Nochumson P.C. for the summer and fall quarters. Mr. Levine graduated from the University of Pittsburgh in 2004 with a degree in Finance. He can be reached by telephone at (215) 399-1346 or by e-mail at dlevine@nochumson.com.