BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
HOA Limitation on Number, Type and/or Size of Pets
Q: I am representing a buyer in a condominium whose bylaws limit each unit’s owner to one cat. Dogs or other pets are not permitted. My buyer has a dog, but still wants to buy this condo. What should I do? Can the HOA do that?
A: They probably can do that. There are two parts to your question.
1. CAN A HOMEOWNERS’ ASSOCIATION PROHIBIT PETS ALTOGETHER?
Many Homeowner Association’s (“HOA”) governing documents contain written restrictions on pets in the complex. Some older associations even prohibit all pets, but such restrictions are becoming more difficult to enforce. This is because a law effective January 1, 2001 required that for any new HOA governing documents, or for HOA governing documents that are amended or otherwise modified after that date, the HOA must allow each owner to have at least one pet. (Civil Code 1360.5)
GOVERNING DOCUMENTS DEFINED: Governing documents are defined as “including but not limited to” CC&R's, bylaws, rules and regulations of the HOA.
PET DEFINED: A pet for this purpose is defined as “any domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed to” between the HOA and the owner.”
So, any change in the governing documents will trigger a requirement such that the HOA must allow at least one pet per unit.
A second new law, which became effective on July 1, 2006 (Civil Code 1363.03,) requires all HOA's to modify their rules regarding HOA elections. As a result, many HOA's did modify their rules to comply with this new requirement.
The California State Office of the Legislative Counsel has rendered an opinion that, if a HOA makes the required elections rule changes, this is a change to governing documents that then requires HOA's to allow one pet per owner. While such an opinion does not carry the force of law, it is persuasive and may indicate how courts will rule in the future.
So, if a HOA has changed the elections rules to comply with this law, they may be unable to prohibit pets in the complex.
A problem can occur if a particular HOA has not yet changed its elections rules (so as to comply with CC 1363.03), and a buyer or existing homeowner wants to have a pet in the unit. Theoretically, the homeowners (with the encouragement of an owner or new buyer after close of escrow) could compel the Board of Directors of the HOA to make the mandated rules change regarding elections, which then would trigger the requirement to allow at least one pet in each unit.
2. CAN A HOMEOWNERS’ ASSOCIATION LIMIT THE NUMBER, TYPE AND/OR SIZE OF PETS IN A CONDOMINIUM, TOWNHOUSE, ETC.?
HOA’s, even those subject to that new law (and thus must allow at least one pet per unit), can regulate the number, size and type of pets. However, there is an overriding consideration that such limitations must be “reasonable;” – which is a very mushy word indeed. But, basically, all HOA decisions, which are made within their governing authority, must be reasonable in light of the stated purpose, the facts involved, and the methods employed toward that purpose.
So, to argue that an HOA could not have a rule to allow cats but not dogs, one would have to argue that such a rule is unreasonable. The HOA may argue, for example, that dogs bark whereas cats are not noisy. Dog’s claws may damage hallway floors and be noisy to neighbors below.
Dogs have to be walked, and thus are in and out of the building interacting with other people and other dogs in the hallways, whereas cats can stay inside all the time. In one notorious case, a large dog actually killed another tenant in a hallway resulting in lawsuits and a criminal conviction.
So, if your buyers wanted to argue that legally such a rule was unreasonable, they would have to buy the condo with full knowledge of the rule, be willing to hire and pay for a lawyer and challenge the HOA on that point, knowing that the outcome is uncertain.
PRACTICE TIPS:
LISTING AGENTS
1. It is always a good idea to check the governing documents to see what prohibitions or limitations there are on pets.
2. If a buyer is demanding to be allowed to have a pet or pets in the unit which exceed the stated limitations imposed by the HOA, forward the request to the HOA to respond as to the HOA’s current position on pets in the unit. They may be willing to change the requirements. Such changes are easy to do if the pet limitation is in the rules or bylaws. Such changes can be very difficult if they are in the CC&R’s.
BUYER AGENTS
1. Ask your buyer if they have, or are planning on having, a pet (or pets) in the unit they are buying.
2. If buyers have, or are planning on having, at least one pet, advise your buyers to review the governing documents to see what those documents prohibit.
3. If the governing documents prohibit or limit pets, ask the listing agent to check with the HOA to see if that is still their current policy.
4. If your buyers insists on buying with their pet(s), in the face of a purported HOA prohibition or limitation on pets, refer the buyers to their attorney for advice, because this could be a contested (and perhaps expensive) issue with the HOA after close of escrow.
5. Document your file as to your advice to your buyer.