BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
PETS IN CONDOS
Q: I am a listing agent of a condominium in a large condo complex. The CC&R’s state that there are no pets allowed in the complex. We are now in escrow with a buyer who states that she is entitled to one pet in her unit because of a recent law that required all condominium associations to allow owners to have a pet in their unit. Is she correct? I hadn’t heard of that.
A: Close, but no cigar! But, the buyer IS correct that there was a recent change to the law which will have the effect of making it easier, and more common, for owners in condominiums (and all other common-interest developments) to have a pet.
BACKGROUND: Many older Homeowner Association (“HOA”) governing documents have written restrictions on pets in the complex. However, a new 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 with 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 an 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 an 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 one pet in each unit.
The problem for agents selling condos (and any unit in a common-interest development) is that there may be a buyer who wants to have a pet, but the HOA has not modified its rules and wants to continue to keep pets out.
PRACTICE TIPS:
LISTING AGENTS
1. It is always a good idea to check the governing documents to see what prohibitions, if any, there are on pets.
2. If a buyer is demanding to be allowed to have a pet in the unit, forward the request to the HOA to respond as to the HOA position on pets in the unit.
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 pets, ask the listing agent to check with the HOA to see if that is still their current policy.
4. If your buyer insists, in the face of a purported HOA prohibition on pets, that they have a right to a pet, refer the buyer to their attorney for advice because this could be a contested (and perhaps expensive) issue with the HOA after close of escrow.
NOTE: Be aware that special rules apply for “Service Animals,” such as a guide dog for the blind. Listing and selling agents must exercise care and investigate the rules related to Service Animals before making statements about their use in any dwelling structure. Buyers and sellers likewise must be advised to investigate these rules.
This Weekly Practice Tip is attorney-client privileged and for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.