SUNSET GREENS HOA V. SPAGENSKI (2021) [ENFORCEMENT OF CC&S-DOGS]

The Association sued Homeowners after their German Shepperd,  attacked neighbors' dogs (including one fatal attack) and neighbors within the Association's community. The Association alleged two alternative theories for relief: breach of governing documents based on the parties' covenants, conditions, and restrictions (CC&R's) and nuisance. The Association asked the trial court to enforce the Association Board's decision to remove the dog, to permanently enjoin the Homeowners from keeping the dog within the Community, and to award attorney fees and costs. The association’s CC&Rs prevented owners from keeping a pet “which interferes with, or has a reasonable likelihood of interfering with, the rights of any Owner or other occupant of a Lot to the peaceful and quiet enjoyment of the Lot.” The trial court granted the Association's motion for summary judgment after determining: (1) the Association established that the Homeowners breached the CC&R's; (2) the undisputed evidence demonstrated an aggressive dog within the Community creates a condition interfering with the comfortable enjoyment of life or property and violations of the applicable CC&R's automatically established the existence of a nuisance; and (3) the CC&R's vested the Board with the discretion to enforce the CC&R's, to declare the dog a nuisance, and to require the dog’s removal from the Community. The court entered judgment for the Association and permanently enjoined the dog from living in the Community. The Appellate court affirmed the judgment and concluded that the trial court properly granted summary judgment because the Association established by undisputed material facts that the Homeowners violated the CC&R's, the violations constituted a nuisance, and the Association was entitled to a permanent injunction.