Beware the Dog Days of November: New Legislation Changes Animal Regulation Control

By Merle Hass, Esq.

The dog days of summer are gone, but new legislation regarding canines needs to be addressed this fall and beyond.

On August 2, 2012 Gov. Patrick signed into law “An Act Further Regulating Animal Control.” The new law makes changes to many animal control laws and creates new provisions and protections. The bill, which had the support of The Massachusetts Society for the Prevention of Cruelty to Animals as well as the Massachusetts Veterinary Medical Association, went into effect October 31, 2012.

The section of the law that you will want to be mindful of concerns so-called “dangerous” dogs. It provides that dogs cannot be deemed dangerous based on breed alone, and it prohibits cities and towns from regulating dogs in a breed-specific manner. In place of enumerating and identifying dangerous breeds, such as pit bulls or Rottweilers, the law defines a dangerous dog as “a dog that either: (i) without justification, attacks a person or domestic animal causing physical injury or death; or (ii) behaves in a manner that a reasonable person would believe poses an unjustified, imminent threat of physical injury or death to a person or to a domestic or owned animal.” G.L. c. 140, § 136A.

Many condominium associations have prohibitions against certain types of dogs, including pit bull terriers. However, as a result of the enactment of the new Animal Control law, such rules may be vulnerable to judicial challenge if a unit owner relies on this statute.

Going forward, we predict a brief period of uncertainty for associations. We are aware that one legitimate reason to prohibit pit bulls and similar breeds has been that insurance companies will not insure premises where those dogs reside. Yet in light of this new law, we expect that such policies will ultimately be found to be unreasonable and unenforceable. While a discussion of the Federal Fair Housing Act is outside the scope of this article, there may also be implications under that Act to any rule or regulation banning certain breeds.

In the short term, we suggest that boards revise their documents to be consistent with the “dangerousness” definition set forth above. While it may be easier to impose a blanket ban on a breed known to include aggressive dogs than it is to assess each dog individually, such stereotyping may create problems and invite litigation.

We are optimistic that this new standard, particularly the aspect that addresses a threat of harm, will be sufficient to protect our common interest communities. We are also hopeful that the insurance industry will quickly catch up to the new legal standards.

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