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March 6, 2007
May The Association Control The Size of Pets - Namely Dogs?
I get asked a lot of questions about pets. This is one of them. Associations generally should be able to control the size of pets, through the deed restrictions, CC&Rs (which require owner approval if amended) and/or rules (assuming the authority is in one of the recorded or regulatory base documents of the Association or in the law of the jurisdiction). In California, there is a law allowing owners to have a pet. There is an exception in the case of an association that had a pet restriction before the law took effect, and that has not amended any of the governing documents since that date. However, the law allows for reasonable rules.
The question of course, is "what is reasonable?" In California, the burden is on the owner to prove a rule is unreasonable and a pet size rule should be upheld if the association enforces it consistently (and not just against non-board members or their friends) and there is a monitoring method that is fair. Such a rule should not be imposed to target a specific pet because chances are, if the pet was already in the development by the time the size limitation which would otherwise exclude it, the HOA probably has to "grandfather" that pet (let it stay until it moves away or dies).
There is at least one "unreported case" in California upholding a pet weight limitation. "Unreported" means the case cannot be asserted as binding authority for the position the judges took, but it is an indication of how at least one appeallate court felt about weight limits.
Pet weight limits can be difficult to define. What if a pet that is under 25 lbs gets fat in its old age and the Board lets it stay? But the dog next door who weighs 26 lbs but is mean has to go? Why is a weight limit being imposed? Boards can address conduct, barking and aggressive behaviors with other rules. Is it because pets have to be carried by the owner (such as in a high rise trying to avoid problems with pet dander)? If barking is the issue, a loud yappy dog can be a lot more disturbing that a big woof ........ woof. Is it really a breed issue? Some associations prohibit dogs on the insurance "hit" lists (meaning those that cannot be insured against for bites or attacks).
I believe a board can impose a pet size limitation in the right circumstances. But that's always the question. What are they? For that, you will need good legal advice based on the need, facts, existing documents, and circumstances in your own development.
Posted by Beth Grimm at March 6, 2007 1:56 PM