This article addresses enforcement issues when the governing documents
ban pets and no medical exception applies that would implicate the Americans
with Disabilities Act, or other state or federal laws that would prohibit
an association from enforcing pet bans in medical-related situations.
For context, it is important to understand a brief history of pet restriction
enforcement in California. In 1994, the California Supreme Court held
pet restrictions, including bans on cats and dogs, to be reasonable and
enforceable. Nahrstedt v. Lakeside Village Condominium Assn, Inc., 8 Cal.4th 361 (1994). This changed in 2001, when the California Legislature
took action and enacted Civil Code Section 1360.5 (Civil Code Section
4715 effective January 1, 2014), which states: "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."
The statute defines pet as a domesticated dog, cat, bird, or aquatic animal
within an aquarium and only applies to CC&Rs recorded or amended after
2001. Therefore, while the interpretation of Section 1360.5 holds some
conflicting case law, common interest developments preparing, reviewing,
or amending their CC&Rs should consider the type of pet restriction
they have and the type of common interest community in which they live.
A complete ban on pets is no longer an enforceable restriction, but Associations
can consider other restrictions to limit the nature of the pet allowed.
In particular, keep in mind the following when adopting pet restrictions
based on weight or breed.
Weight Restrictions. We often advise community association clients to avoid weight limits both
because they are hard to enforce (no one wants to chase down Rover with
a scale) and because the problems dogs cause often do not vary with weight.
However, case law in California and around the country is that a Board
can impose restrictions on pets and that a weight limit is an enforceable
restriction. For instance, the Second District Court of Appeal, in San Vincente Villas Homeowners Assn, Inc. v. Cohen, 2003 WL 22962813 (2003), found a restriction which limited homeowners
to one pet weighing no more than fifteen pounds was enforceable. Although Cohenis an unpublished decision (it cannot be cited as law in another case),
it seems fairly clear that if an owner's or resident's pet is
violating the association's governing documents, a court is going
to order that the pet be removed, and that the homeowner pay the association's
attorneys' fees and costs.
Breed Restrictions. Dog breeds listed on the so-called "dangerous dog list" breeds
uninsurable by some insurance companies because of their increased risk
for hurting other pets or people are sometimes the target for pet restrictions
in HOAs. The breeds include: Pit Bull, Rottweiler, Akita, Berrnese, Canary
Dog, Chow Chow, Doberman, Husky, Karelian Bear, Rhodesian Ridgeback, and
Russo-European Laika. Blanket prohibitions of certain dog breeds may be
reasonable, and make enforcement easier than if the association attempted
to remove a threatening dog under, say, a nuisance provision. One thing
for associations to keep in mind, however, is that if rules passed prohibiting
breeds on the dangerous dogs list, current dogs on the list may have to
be grandfathered in. Adopting rules and grandfathering properly (so that
you are not also grandfathering a nuisance or safety risk) takes care
and an understanding of California law. Seek advice from counsel if your
association wishes to adopt this type of restriction.