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May 10, 2007
DOGS - MUST HOAs ACCEPT THAT AN OWNER CAN HAVE ONE?
OKay, I am tired of dancing around the question, and several readers have asked - does an HOA board in California have to allow dogs?
And before answering, I will add the caveat - listen to your own legal counsel - there is debate on this very issue going on all over the State.
What does the law say?
1360.5. PETS WITHIN COMMON INTEREST DEVELOPMENTS.
(a) No governing documents shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet within the common interest development, subject to reasonable rules and regulations of the association. This section may not be construed to affect any other rights provided by law to an owner of a separate interest to keep a pet within the development.
(b) For purposes of this section, “pet” means any domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed to between the association and the homeowner.
(c) If the association implements a rule or regulation restricting the number of pets an owner may keep, the new rule or regulation shall not apply to prohibit an owner from continuing to keep any pet that the owner currently keeps in his or her separate interest if the pet otherwise conforms with the previous rules or regulations relating to pets.
(d) For the purposes of this section, “governing documents” shall include, but are not limited to, the conditions, covenants, and restrictions of the common interest development, and the bylaws, rules and regulations of the association.
(e) This section shall become operative on January 1, 2001, and shall only apply to governing documents entered into, amended, or otherwise modified on or after that date.
What on earth does that mean, with regard to the question of dogs?
I happen to believe the following words are key: ... "from keeping at least one pet within the common interest development ... [and] ... “pet” means any domesticated bird, cat, dog ... or other animal as agreed ....." and that they mean that an HOA Board (unless there is an exception based on the retroactivity clause) has to allow an owner have a dog, unless or until the dog has proven itself worthy of exile.
Some Boards have adopted "no dogs rules", but they allow other pets - risky in my view, but they are at least in some cases getting legal advice that it is okay to do so ... so be it - I am not here to criticize other attorneys. And it only takes two attorneys to disagree to be headed toward a lawsuit. And this is an issue that is ripe for litigation. However, the more conservative view, again, my opinion, and to avoid litigation over the meaning of the statute, is to allow the dog. That does not mean you cannot take action against an owner who allows a dog to be present that is a menace to society. Unreasonable barking and pooping without pickup are still generally actionable nuisances.
More commentary: This new statute raised eyebrows in 2001. For example, how difficult was it going to be to “expel” a problem pet? And if any rule on any subject was amended did the Association lose the right to prohibit pets if a prohibition existed before this statute took effect? Those questions still exist. And it is important to know about a California appellate case that was decided in 2004 that allows for a “companion pet”. The case is called Elebiari v. Auburn Woods I and it involved an association that attempted to enforce a “no dogs” rule (other pets were allowed) when the owner claimed the dog provided good company and improved her mood.
The truth is that it is getting harder and harder to prohibit any pets but to prevent the invasion of dangerous breeds of dogs, some associations are adopting CC&R amendments that ban certain types of dogs, specifically breeds that are uninsurable by some companies. The legality of that has yet (at least at the appellate level) to be clearly established; and as far as I know, there is no case law specifically forbidding such an amendment. If an amendment is approved by the owners, I believe, though, that it is necessarygrandfather existing pets at least until they die or are removed from the development, or become a nuisance subject to the governing document provisions (assuming they exist) on expelling the dog from the development. The proposal makes sense given the risk of substantial loss if there is an attack by any dog and since these dogs are identified to have the propensities.
Making sense is good. There are still those that would argue against such a proposal, and some that would flaunt their new-found power given by the statute by harboring a dangerous dog, but the world is not perfect now, is it? Whenever I hear that "my rottweiler" or my "pit bull" is the family baby and would not hurt a flea, my mind flashes to horrible stories reported of children being seriouisly injured and in some cases killed by the "family pet". In too many cases, it was a dog on the "list". Where do you think insurance actuaries who recommend these exclusions get their information from ... the news stories? or the facts?
Posted by Beth Grimm at May 10, 2007 10:20 AM