Q: Our community has a resident who leaves their unattended, large service dog on the balcony. The dog barks once or twice every time it sees anyone walk by. This goes on all day and evening. The tenant is a renter and efforts to have them keep the dog inside have failed. Please help!
A: I assume from the question, which indicates that resident is complaining about a large “service dog,” that perhaps the community does not allow pets. As the reader may be aware, decisions of federal and state courts interpreting the Federal Fair Housing Law and New Jersey’s Law Against Discrimination have held that in certain instances housing providers, such as a common interest community, must accommodate those with a legitimate physical or emotional disability requiring the support or assistance of an animal. Nonetheless, even where an accommodation is required by law, the resident is still required to maintain the animal in accordance with existing rules and regulations – which often include, among other requirements, that residents permit no activity that creates a nuisance or annoyance to other residents. Such rules require the resident to take all actions necessary to prevent the animal from making noise that may unreasonably annoy or disturb the peace of neighboring residents.
Regardless of whether or not the animal is a “service dog,” if the barking exceeds the average noise level a reasonable person would expect while living in a condominium, then the resident may be in violation of restrictions in the governing documents prohibiting any acts which may be or become an annoyance or nuisance to other residents in the community. If this is the case, the Association may determine to (a) issue a letter advising the owner to keep the barking of the dog at a reasonable level so as not to cause a nuisance to other residents (b) fine the unit owner if permitted by the governing documents and/or (c) refer the complaining unit owner and owner of the dog to mediation.
The issue of a “nuisance” is very fact sensitive. Thus, we recommend that you consult with your legal counsel prior to issuing a fine or taking any other action against a unit owner who fails to keep the barking of their dog to a reasonable level.