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Condo | HOA Lawyers

Association’s Vested Discretion in Declaring an Aggressive Dog a Nuisance


The Spagenskis (“the Homeowners”) lived in a community in San Diego County with their German shepherd Kato.  The community was governed by Sunset Greens Homeowners Association (the “Association”) in accordance with a declaration of covenants, conditions, and restrictions (“CC&R’s”). From February 2019 to May 2019, Kato attacked three dogs in the community.  In the first incident, Kato injured a resident and her dog, and after the incident, Kato was placed in home quarantine by the Humane Society.  The Association ordered the Spagenskis to comply with the CC&R’s to ensure that Kato would be kept under control.  Three months later, Kato attacked two other dogs and other residents in the community.  One of the injured dogs died while undergoing surgery.  The Humane Society, once again, placed Kato in-home quarantine for another 10 days.  Following the second incident, the Association directed the Spagenskis to remove Kato from the community and filed suit, seeking injunctive relief for breaching the CC&R’s and nuisance clause.

Trial Court Decision

The trial court granted the Association’s motion for summary judgment after determining that: (1) the Homeowners breached the CC&Rs; (2) Kato was a nuisance within the community; and (3) the Association had the right to require Kato’s removal from the community.

Appellate Decision

The appellate court reviewed the trial court’s decision de novo and found no “triable issues of material fact on [the] Homeowner’s breach of the CC&Rs” and on the nuisance claim.  On the breach of the CC&Rs claim, the Homeowners argued that Kato was provoked during the incidents, and there was no proof that Kato had future aggressive tendencies because of his subsequent training.  The court, however, rejected this argument for two main reasons.  First, the Homeowners cannot raise a material factual dispute as to what occurred before the incident because they did not witness the moments before Kato’s attacks.  Second, Kato’s subsequent trainings were immaterial because the CC&Rs “does not require the [Association] to consider abatement or the likelihood of future harm in determining whether a breach occurred or in exercising its discretion to enforce the CC&Rs.”  For these reasons, the court held that the Association met its burden to establish that the Homeowners breached the CC&Rs.

The court also concluded that the Association met its burden to establish that Kato was a nuisance in the community and that Kato “unreasonably and substantially interfered with the Association member’s comfortable enjoyment of property.”  While the Homeowners provided no evidence that Kato was provoked during the attacks, the Association established through witness declarations that Kato was the aggressor in the incidents and injured several dogs and residents.  Ultimately, the appellate court affirmed the trial court’s decision and concluded that the Association was entitled to a “permanent injunction prohibiting [the] Homeowners from keeping Kato within the community.”

Lesson Learned
  1. An aggressive animal can be a “nuisance” under association documents;
  2. Homeowners need to review their Association’s documents (in this case CC&R’s) carefully. Some Associations give themselves broad discretion on how to enforce their CC&Rs.
  3. A court likely will not override or second guess an Association’s discretion relating to the enforcement of their documents, including to remove an animal from a community, so long as the Association makes a good faith effort in their decision.


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