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Man’s Best Friend, Your Neighbor’s Worst Enemy? Pets and Enforcement in Community Associations

May 2, 2011 | Archive, Blog, Text Only Article | 0 comments

Pets continue to be a hot button issue for our community association clients, pitting pet lovers against those who find pet noise or allergens intolerable.  We are often asked how community associations can regulate pets, and more importantly, what limitations exist on how pets can be regulated in communities. The obligation to allow service animals has created questions about what kinds of pets are service animals and who gets to decide.

Start With Your Governing Documents

To understand how your association can regulate pets, you should look to your governing documents.  Your Declaration or CC&Rs will set out the guidelines for what kinds of pets are permitted in your community and how they can be regulated, so let’s start there.

If your governing documents include a prohibition on pets, then that is the final word on pets in your community – pets are simply not allowed.  If there is a pet prohibition, the Board of Directors may not adopt rules and regulations which permit pets in the community.  If the association wants to allow pets in the community, a Declaration or CC&R amendment will need to be passed by the membership to permit pets.

If your Declaration or CC&R’s do allow pets, it may be with or without specific limitations.  If the Declaration simply states that common household pets are permitted, the Board of Directors has broad authority to adopt rules and regulations to deal with pets in the community. They could by rule define “household pets” to mean only cats and dogs, or to prohibit fish or chickens.  However, your documents may include specific limitations on the types of pets which are allowed in the community (i.e., allow cats, but not dogs), the size or breed of pets in the community (i.e., no pets over 25 lbs., no pit bulls), or the number of pets each Unit may keep (i.e., 2 pets per Unit).  If your Declaration sets out these types of specific limitations, the Board may only adopt rules and regulations within these parameters.

What Are The Rules and Regulations?

Once you have looked at the governing documents to determine whether pets are permitted and with what limitations, look at your association’s rules and regulations.  The rules and regulations typically address things like disposal of pet waste or the presence and behavior of pets in the community’s common areas.  You should also be aware of state laws and local ordinances which may apply to pets, such as leash laws, which may set reasonable standards for your community to follow.

Other governing document provisions may also play a role in the association’s regulation of pets.  One of the most common complaints we receive about pets is the issue of pet noise, whether it be the sound of cats scratching or a dog barking.  The Board may consider this a violation of the governing documents’ prohibition on nuisances and annoyances, even if pet noise is not specifically addressed.  Pet noise which interferes with another homeowner’s enjoyment of his or her property could be considered a violation of the nuisance provision.

Another Declaration provision which may relate to pets is a provision wherein Unit Owners are held responsible for any damage caused by the owner, or their tenants, guests, etc.  Your governing documents may specify that the Owner is responsible for damage caused by his or her pet; the Board can then shift the cost of repairs to that owner.

Beyond the Board

Some pet issues go beyond what the Board of Directors may be able to handle. Vicious animals, continually barking dogs, and other problems may also be referred to your local animal control officers. Boards cannot solve all pet problems and should reach out to the government when they can to help both owners and victimized animals.

Enforcement

As with enforcing any rule, associations must enforce pet-related provisions uniformly and consistently against all residents.  This means that the association cannot enforce a no pets provision against dog owners but allow other owners to keep cats!  The association should provide all owners with proper notice of any violation of the pet provisions and give the owner an opportunity to be heard on the violation before imposing any fines or other sanctions.

Service Animals

There are some animals that are not considered “pets” under the law.  Service animals that assist persons with disabilities are not pets, so pet prohibitions may not be enforced against the owners of those animals.  However, the Board’s ability to enforce rules about pet waste, noisy animals, and other nuisances may still exist, but those problems will be balanced against the benefit of the service animal to its owner.

The federal Fair Housing Act makes it illegal for community associations to prohibit service animals, though the definition of a “service animal” is somewhat amorphous.  The Department of Housing and Urban Development (“HUD”) defines a service animal as any animal that assists, supports, or provides service to persons with disabilities, and no special training is required.  Because of this, it seems that almost any animal could fall under this definition as long as it provides some medical or psychological benefit to its owner.

Associations are required to make reasonable accommodations for persons with disabilities, and a service animal is considered a reasonable accommodation. The law allows an association to deny a request for accommodation only if it is unreasonable, meaning that allowing the exception would impose an undue financial and administrative burden on the association or would fundamentally alter the nature of the association’s operations.  The determination of undue financial and administrative burden must be made on a case-by-case basis.

If a request for a service animal does not impose a significant burden on the association, the request for the animal will likely be approved if the person making the request can show that the need for the service animal is related to a legitimate disability. In making that determination, the Board may only request information that is necessary to evaluate the disability-related need for the service or companion animal.  We typically suggest that any documentation from a health care professional stating that the person is disabled and that the animal is required for medical reasons should not be challenged.   Any information provided to the association to support a reasonable accommodation request must be kept confidential.

Associations cannot require persons with service animals to pay extra fees or deposits. However, if a resident’s service animal causes damage to the common areas of the community, the association may charge the owner for the cost of repair, as long as the governing documents include the applicable language.  While a service animal is not considered a “pet” for purposes of a pet prohibition or limitation on the number of pets, the service or companion animal should still abide by rules adopted by the Board, such as those regarding pet waste, pet noise, leash laws, etc.

Finding a Balance

Pets can be a divisive issue in a community, but your Association can tailor its governing documents to regulate pets according to the needs of the community.  Once the association has established rules and policies regarding pets, those policies should be enforced fairly so that all owners’ rights are protected, whether they are pro- or anti-pet. When an owner makes a request for a service animal, we would suggest that you obtain professional advice in how to accommodate the request.

By Jennifer Hill

Associate Attorney, Condominium Law Group, PLLC

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