Barking Dogs

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by Michael Geo F. Davis, Attorney at Law

Try to look at this from a judge's perspective.  To a judge you are trying to take someone's home away because his dog barks too much.  You hear the complaints that the barking dog is keeping the neighbors awake at 2:00 a.m.  You get the irate phone calls that the unattended, whining dog on the balcony is interfering with the neighbors' quiet enjoyment of their apartments. You may even have a neighbor's letter refusing to renew because of the noise.  The challenge is to present the court with enough evidence that the judge sees the seriousness of the issue. 

Initially you have to use your judgment.  Sometimes that means telling a resident who is hypersensitive that the neighbor is not violating the lease.  The complaining resident may be harassing the neighbor without justification by constantly confronting him over the dog or calling the police with noise complaints.  The complaining resident may be interfering with your management operations by making unrelenting phone calls or office visits over this issue.  You have an obligation to enforce the neighbor's right to the quiet enjoyment of their apartment, free from the unreasonable disturbances by the complaining resident.  This may call for a Seven Day Notice of Noncompliance with Opportunity to Cure to the complaining resident.

However, what if your investigation discloses that the dog is the problem?  You have spoken to the dog owner, and the unacceptable barking continues.  Your next step is to prepare your case for court.  Yes, your court case starts now, not when you file the eviction.  If you do not have a strong case, you will lose.  Expect the dog owner to deny the barking is frequent or loud, and to have his family or friends testify to that.  

Send the dog owner a Seven Day Notice of Noncompliance with Opportunity to Cure.  If the barking continues after the Seven Day Notice of Noncompliance with Opportunity to Cure expires, a termination notice can theoretically be served, but you should seriously consider serving another cure notice.  Serving a second Seven Day Notice of Noncompliance with Opportunity to Cure demonstrates that the resident had several chances.

Your Seven Day Notice of Noncompliance with Opportunity to Cure and Seven Day Notice of Noncompliance without Opportunity to Cure should be within a reasonably close span of time (90 days) to show this was not several, isolated incidents in an entire year.  This barking was a continuing, serious, unreasonable disturbance of the neighbors.  If the barking continues, assemble your proof and contact your attorney for a full consultation.  An agreement to vacate should be offered to the dog owner and, if refused, then a Seven Day Notice of Noncompliance without Opportunity to Cure can be considered.

You must prove that there was a basis for sending your cure and termination notices.  You will need to prove the barking occurred before the Seven Day Notice of Noncompliance with Opportunity to Cure was delivered, and again after the cure notice expired and before sending the Seven Day Notice of Noncompliance without Opportunity to Cure.

The earlier witnesses are on board the better. Speak to them personally. Tell them your lawyer said, "No witnesses, no case."  Witnesses need to write it down - keep a log: date, time, duration of barking and how loud.  This also calms the angry neighbors, because now someone is doing something to address their problem. You have a plan.

Your staff and courtesy officer can testify to the barking. Have them complete incident reports. You still need neighbors to testify, because it's the neighbors that are being unreasonably disturbed. Unless your staff is on-site at night, they can't help with night barking, because they must actually hear the barking. You should have at least two witnesses, each from a different apartment, who will testify. The more witnesses the better your case will be. One witness alone is subject to a tie in testimony. He said, she said. You lose all ties.

Often the dog owner will admit that the barking is unreasonable.  He may send an explanation or apology in response to your notices.  He may admit it in a conversation with you, but it will help to have a witness to verify his oral admission

Call the police, and obtain police reports in which the police indicate that they heard the barking, and that it was unreasonably loud.  Call animal control, and obtain reports in which the animal control warden indicates that the dog was unattended and/or barking loudly.  Given ever available video cameras, you may be able to obtain video and sound recordings of the dog, if it is on a balcony or lanai.  You may be able to obtain tape recordings of the barking even if the dog is inside.  Identify any video or tape recording as to who recorded it, date, time and location.

After you serve a Seven Day Notice of Noncompliance with Opportunity to Cure, you would be wise to refuse any rent pending compliance with the cure notice.  If the barking stops, you can accept the rent.  If the barking continues, then you serve the Seven Day Notice of Noncompliance without Opportunity to Cure and refuse rent payment.

Lastly, the pet removal might have been simplified by a well drafted pet addendum providing the landlord with the discretion to demand the pet's removal.  The landlord's discretion isn't unbridled, and he would have needed proof that the dog was disturbing other residents.  However, depending on the circumstances, the proof and court case could have been much less demanding.