Bowser’s owner came over to pick up a key to the condo in Yachats. As a result of an accord and satisfaction reached by Bowser and the cats, Bowser was now a part owner of the condo, and Bowser was excited to be spending his first weekend in Yachats. During their negotiations, the cats had failed to disclose the fact that there was a restrictive covenant prohibiting any dog from entering the condo.
“Here’s the key,” I said to Bowser’s owner, “but there is something that you need to know. There is a restrictive covenant prohibiting dogs from entering the condo.”
Bowser’s owner was stunned. He looked down the street and saw Bowser’s tail wagging as Bowser circled the car that would take him to the coast. “What do you mean?” he asked. “Bowser is a part owner of the condo. How could he not be allowed to use it?” I told him about the restrictive covenant. “Those cats are not going to get away with this,” he said. “Either the restrictive covenant is removed, or we will sue them for fraud by concealment!” I asked him to give me half an hour while I talked to the cats, and he left rather abruptly.
I stormed downstairs. The cats were on the couch, foreleg deep in a bowl of popcorn while watching a movie that was costing me $4.99. I stood in front of the TV and ignored their howls. I told them that unless the restrictive covenant were removed they were going to be sued. They demanded to call their San Francisco attorneys, but their attorneys wouldn’t take their call. The cats had failed to pay a bill for $187.50 for an email advising the cats that they didn’t have a claim against me for animal abuse because of my refusal to pay for a premium channel that they wanted. Reluctantly, the cats sought my advice.
I told the cats that their failure to disclose the restrictive covenant was fraud by concealment and that if they failed to remove it Bowser could either rescind the accord and satisfaction, which would reinstate his judgment against them, or he could get a money award against them for the diminution in value of the condo due to the undisclosed restrictive covenant. The cats agreed to remove the restrictive covenant. I immediately called Bowser’s owner, and they finished packing the car to head to the coast.
The cats were in a sullen mood. Once again, the law had frustrated one of their shrewdest plans.
Allen Drescher has practiced law in Ashland and Southern Oregon since 1973. His practice areas include real estate, business law, estate planning and elder law.