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 impose this restriction?
A: There are several parts to your question. The considerations are whether the animal is a pet or an assistance animal and whether the HOA governing documents have been created or changed since January 1, 2001.
- What is the difference between a “pet” and an “assistance animal?”
If the animal in question is an “assistance animal” it is not a “pet” and cannot be treated as such. “Assistance animals,” which include both service and emotional support animals, cannot be considered “pets” under the law.
- Treatment of assistance animals.
- How must an HOA treat a buyer or tenant applicant in the Association who has an assistance animal?
A person with a legitimate service or companion animal must be treated as if the animal is not there and is not subject to pet restrictions. Sellers, rental property owners and HOAs must make a “reasonable accommodation” for the animal, meaning that the tenant or buyer must be evaluated for renting or buying in the Association without respect to the existence of that animal.
- How must a seller or rental property owner in an HOA treat a buyer or tenant applicant in the HOA who has an assistance animal?
The property owner or must be advised that, when the tenant applicant has indicated that they have a service or emotional support animal, and the property owner is considering rejecting the applicant on that ground, that property owner should be advised in writing to consult with a local landlord-tenant attorney regarding fair housing issues.
For more information on “assistance animals,” See the Weekly Practice Tip
“Fair Housing Law and Regulations – Assistance Animals”
- Can an HOA prohibit owners from having pets?
If the animal is not an assistance animal, it is treated as a pet and subject to the rules that apply to pets. The threshold question is whether the HOA has created or changed its “Governing Documents” on or after January 1, 2001.
- HOAs that have not created or changed its Governing Documents after January 1, 2001
California law states that Associations, which have not created or changed any Governing Documents on or after January 1, 2001, may completely restrict the keeping of pets within the Association.
- HOAs that have created or changed its Governing Documents after January 1, 2001
However, Associations which have created or changed any “Governing “Documents” on or after January 1, 2001, may restrict, but not prohibit, the keeping of pets within the Association.
- While pet ownership in such Associations may not be prohibited, reasonable rules and regulations of the Association are permissible.
- Any new rules of the HOA that limit the number of pets an owner may have, may not prohibit any pets that the owner already has which qualified under the previous rules.
- 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.”
- CAR’s “Animal Terms and Conditions Addendum” (Form ATCA on zipForms) replaces the former PET addendum and can be used on all rental/lease transactions.
PRACTICE TIPS:
LISTING AGENTS
- If a prospective tenant states 230901 HOA Limitations on Petsthat they have a service or emotional support animal, tell the property owner to check with their qualified landlord-tenant attorney and the HOA regarding whether the animal has met the requirements for qualifying to have such an animal in the HOA.
- Do not advise a prospective tenant that they cannot have a service or emotional support animal.
- If a buyer or prospective tenant is demanding to be allowed to have a pet or pets in the unit which exceed the stated limitations imposed by the HOA, have the owner or seller forward the request to the HOA to respond as to the HOA’s current position on pets in the unit.
BUYER/TENANT AGENTS
- If your tenant client has an animal or animals that they intend to bring with them to a rental in an HOA, whether considered to be an assistance animal or a pet, add the CAR “Animal Terms and Conditions Addendum” to the lease/rental agreement.
- If your buyer or prospective tenant for a unit in an HOA has an animal, ask whether they consider that animal to be a pet or assistance animal.
- Assistance Animals: If your buyer or prospective tenant has an assistance animal, they should request a reasonable accommodation allowing that animal in the unit and HOA. It is up to the property owner and/or HOA to determine if this animal meets the criteria to qualify as an assistance animal.
- Pets:
- Ask your buyer if they have, or are planning on having, a pet (or pets) in the unit they are buying.
- 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.
- If the governing documents prohibit or limit pets, ask the listing agent to have the seller check with the HOA to confirm that that is still their current policy.
- If your buyers insist 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.
- Document your file as to your advice to the parties.
This Weekly Practice Tip an attorney client privileged document and is 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