The Dog in the Night-time

Police detective: “Is there any other point to which you would wish to draw my attention?”

Sherlock Holmes: “To the curious incident of the dog in the night-time.”

Police detective: “The dog did nothing in the night-time.”

Sherlock Holmes: “That was the curious incident.”

– Sir Arthur Conan Doyle,
“Silver Blaze”

Cooperatives (and sometimes condominiums) are often asked to intervene when shareholders complain about noise – in particular noise from a barking dog in a neighboring apartment. The case of Ho Foong Shiu Realty Corp. v. Pullman involves a rental apartment building, but the court’s analysis and ruling concerning the proof required is probably applicable to co-op apartments as well. The case was brought in landlord–tenant court based on allegations that Keri Pullman, the tenant, breached her lease and created a nuisance because of her dog’s incessant barking. Indeed, the landlord claimed that there were many complaints from tenants in the building about the barking dog.

Pullman’s lease – similar in concept to many proprietary leases – provides that “the comfort and rights of other tenants must not be interfered with. This means annoying sounds, smells and lights are not allowed.”

In 2013, Pullman got a new dog (there were no incidents with her prior dog). The dog is a “rescued” dog that had been abused by its prior owners and was scheduled to be destroyed. The court notes specifically that the dog “suffered from separation anxiety.” Pullman hired a behaviorist and trainer to help the dog overcome this fear. Further, at the time Pullman adopted the dog, she worked at night. Since getting the dog, she started her own business, which would allow her to be home more and to take the dog to work.

Pullman admitted that the dog barked when she first adopted it, but claimed that the separation anxiety had been reduced and that the dog’s barking was no longer a problem. Pullman said she was able to monitor the dog’s progress through an online camera triggered by noise and accessed by cell phone.

Only three tenants testified about the matter in court. The first two were Kathy Kemp and Thomas Hughes. They live directly below Pullman’s apartment with their eight-year-old son and ten-year-old dog. They testified that, beginning in January 2013, they began complaining to Pullman about her dog’s barking. Kemp agreed that the major problem subsided after six months, but testified that there were still disturbances roughly three times a week. The third tenant who testified was Wilma Quinones; she lives directly above Pullman. According to Quinones, she heard the dog bark when Pullman first adopted it, but had not heard it since. Quinones added that she has never been disturbed by the dog’s barking.

The court discussed the elements of a claim for nuisance and found that it was the landlord’s burden to show that Pullman’s behavior was a “continuous invasion” of the other tenants’ rights. The court was disturbed by the notices Pullman had received, which claimed that “many” tenants complained about the barking, when actually only two tenants from the same apartment had come forward. This was an issue for the court, which explained that when only one tenant complains, the dispute may be about more than noise – it may be about two neighbors who do not get along for other reasons. Although the court did not discuss it in any detail, there seems to have been an e-mail correspondence admitted into evidence showing that Kemp and Hughes were at odds with Pullman over a matter unrelated to a barking (or silent) dog in the night-time. The court cited other cases where it was found that a dog’s behavior constituted a nuisance; however, in those instances, multiple tenants had complained.

The court also said that although it found Kemp’s and Hughes’ testimony credible, it found Quinones’ testimony equally credible as well. As the evidence was balanced, the court had no alternative but to rule for Pullman.

The Takeaway

While this case addresses a landlord–tenant relationship in a rental building, it serves as a cautionary tale for cooperatives and condominiums as well. If a co-op or condo elects to bring an action against an apartment owner as a result of a barking dog, it should make sure it has more than one occupant backing it up. The board should also know up front whether there are any unrelated harsh feelings among the involved parties.

For practical purposes, a managing agent and/or resident manager will typically save all e-mails and letters concerning complaints about a building resident. If a resident calls the door staff to complain, notes are typically made and maintained in the building log, and copies of those pages should be kept with the file for that apartment owner.

Before a board makes the decision to begin an action, its counsel may want to speak with those who have complained about the noise. Among other things, counsel will want to know that the people complaining are prepared to participate in any legal action. We have seen several situations where occupants have complained about noise, yet, when asked to participate in a lawsuit (or even when asked to allow the board to identify them in correspondence), they have refused, apparently because they do not want to be put in an adversarial position with their neighbors. Under these circumstances, there is often little a board can do to resolve the problem.

Attorneys
For the landlord: Steven T. Gee
For the tenant: John T. Maher,
Diana A. Jarvis