Enforcing Pet Restrictions: What's Allowed And What's Not?

Pet Restrictions

Pets can be a welcome addition to your family.  A loyal dog, a comforting cat, or even a calming fish tank can vivify a household and provide a soothing distraction from the daily grind.  But, unfortunately, pets can also occasionally become an annoyance to neighbors.  Overly abundant cats or noisy dogs negatively affect a development’s quality of life and aesthetic appeal.  Aiming to curtail potential nuisances, many homeowners’ associations have adopted pet restrictions within their declarations, establishing rules regulating members’ pet choices and practices. Find out what homeowners' association can (and cannot) do under the law.

Types of Pet Restrictions.

The limitations on pet ownership found in most developments are what’s referred to as “reasonable restrictions.”  Certain species or dog breeds might be prohibited or pets limited to a maximum size.  Members may be constrained in the total number of pets they can own and required to keep dogs on a leash and clean up any “messes.”  The majority of associations don’t mind their members having pets – they just want to make sure the animals don’t disturb other residents.

However, due to the nature of certain communities, some associations (most commonly in condominiums) have adopted blanket prohibitions on all pets.  These more stringent restrictions are frequently challenged and, for the most part, have been upheld in court.  In sustaining a total prohibition on all pets, the California Supreme Court held that, as long as a restriction does not violate public policy, is not “wholly arbitrary,” and does not impose a burden on members greatly outweighing the projected benefits, it should be enforced.  Nahrstedt v. Lakeside Village, 8 Cal.4th 361 (1994). 

For the most part, state courts throughout the country agree with the California court’s Nahrstedt decision and enforce blanket pet prohibitions as long as validly adopted[1].  Interestingly, though, the California legislature did not like the decision.  In response, it enacted Cal. Civ. Code §4715, which establishes the right of all members to keep at least one pet.  Associations can still adopt restrictions on breed, size, number, and other reasonable criteria, but, for the most part, if you buy a home in a California development, you have a legal right to own at least one pet.

Enforcement of Pet Restrictions.

Enforcing community covenants is ultimately the responsibility of the HOA board, and pet restrictions are no exception.  If a member refuses to comply after being notified of a violation, the board can impose a fine (if authorized by the community’s governing documents) or take legal action.  If necessary, the board can file a civil lawsuit requesting injunctive relief against the nonconforming member.  With pet restrictions, this usually means an order directing the member to remove the animal from the development.  If the member refuses to comply with a court order, the judge can direct the sheriff to enforce it and hold the member in contempt, which can result in a fine or even jail time.

With any restriction or covenant, including pet restrictions, association boards should strive for uniform and even enforcement.  If a board enforces a restriction sporadically – or gives board-members or their friends a pass – the association risks waiving the right to enforce the restriction in the future.  The idea is that every covenant is intended to serve a purpose.  And, if the board’s enforcement is arbitrary or capricious, the board is implicitly saying that the purpose really isn’t all that important.  Then, if the restriction is later challenged, a judge might decide that, based upon the prior non-enforcement, the association has abandoned its right to enforce the restriction.  Alfaro v. Community Housing Improvement System & Planning Assn., 171 Cal.App.4th 1356, 1380 (2009).

Grandfathering.

While uniform enforcement should be the goal, sometimes enforcement is not possible against certain residents.  “Grandfathering,” for instance, occurs when a member is already engaged in conduct that becomes restricted by a subsequent amendment.  So, if a resident already owns a dog, and the association amends its rules to prohibit dogs, the board might not be able to enforce the new rule against that specific member and dog. 

California’s legislature codified “grandfathering” in relation to HOA pet restrictions at Cal. Civ. Code §4715(c).   The statute disallows enforcement of a newly-enacted pet restriction against an owner whose pet was previously compliant.  The legal theory of grandfathering is similar to the ban on ex post facto laws included in Article I of the U.S. Constitution.  Both theories are rooted in the principle that a person should not be punished for engaging in an act which was not against the rules when it occurred.

When adopting new pet restrictions, associations are well-advised to include a grandfather clause expressly exempting members keeping non-compliant pets prior to the effective date of the amendment.  Along with promoting fairness to members, grandfather clauses also protect the board by preempting future waiver claims based on non-enforcement against grandfathered residents.  And by writing the exemption to expire upon transfer of the property or when the member no longer owns the non-compliant animal, the grandfather clause can gradually phase out until the restriction is applicable to all members.

Federal Exceptions to Pet Restrictions.

No matter how well-drafted the restriction, situations are likely to arise in which enforcement potentially conflicts with federal law.  And when that happens, the latter always takes precedence. The statute most commonly preempting pet restrictions is the Fair Housing Act (“FHA”), which prohibits discrimination in housing based on disability (among other classes) and requires “reasonable accommodation” of disabled persons.  “Reasonable accommodation” can include allowing a disabled person to keep an assistance animal, even if the development prohibits pets.

According to the Department of Housing & Urban Development, an assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability[2].”  Whereas the Americans with Disability Act (“ADA”) limits protected “service animals” to dogs with specialized training to perform specific tasks for a disabled person’s benefit (like guide dogs), “assistance animals” under the FHA can include any kind of domestic animal as long as there is a link between the disability and the help the animal provides.  Thus, emotional support animals with no specialized training can be “assistance animals” under the FHA definition.

If a disabled resident makes a reasonable request for accommodation which is necessary for his or her use of a home within the community, an association is required to modify or waive its pet restrictions[3].  The disabled member must abide by restrictions not affecting the animal’s ability to provide support (like leash and waste clean-up rules), but restrictions on species, breed, and size cannot be applied to an assistance animal.

Federal courts strictly enforce the FHA against homeowners’ associations.  The 11th Circuit, for example, found that a condo association violated the statute when it sought to remove a PTSD-suffering owner’s emotional support dog because the dog exceeded a weight restriction.  Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014).  The association in Bhogaita was ordered to pay $5,000 in damages and $100,000 in attorney’s fees.  And in Warren v. Delvista Towers Condo. Ass'n, Inc., 49 F. Supp. 3d 1082 (S.D. Fla. 2014), an association banning all pets was found to violate the FHA when it attempted to remove a member’s emotional support dog (a pit bull), even though the county banned pit bulls.

Associations are permitted to refuse accommodation for assistance animals if the animal in question poses a “direct threat to the health or safety of others … [or] substantial physical damage to the property of others … that cannot be reduced or eliminated by another reasonable accommodation.”  HUD FEO 2013-01.  Whether an accommodation is required for a specific assistance animal “is highly fact-specific, requiring case-by-case determination[4].”  The threat the association cites as stemming from the animal must be based on the specific animal’s history and not only upon fear or breed-reputation.  See Chavez v. Aber, No. EP-15-CV-00068-KC, 2015 WL 4724807 (W.D. Tex., 2015) (request for reasonable accommodation could not be denied for a member’s emotional support animal based on reputation of pit bull breed absent signs of aggression from specific animal).

The ADA can also affect an association’s pet policies but is not as widely applicable as the FHA.  The ADA prohibits discrimination against persons with disabilities in public accommodations, so its application is usually limited to publicly-accessible commons areas in the development.  Under the ADA, service animals belonging to a disabled person must be permitted into any common area in which the owner is permitted.  However, as noted above, the protection is limited to dogs with specialized training and does not extend to emotional support animals.

An association’s board has a duty to uniformly enforce covenants and restrictions, including restrictions on pets.  However, board-members must keep in mind that federal anti-discrimination laws always trump the community’s governing documents, and violation of laws like the FHA and ADA can result in serious liability.  Whenever in doubt as to whether a member is in violation of pet restrictions, or if a member is entitled to reasonable accommodation, the board should seek the advice of experienced legal counsel.

Footnotes:

[1] See, e.g., Wilshire Condominium Assn., Inc. v. Kohlbrand, 368 So. 2d 629 (Fla. Dist. Ct. App. 1979) (approving New York court’s decision upholding prohibition on dogs), Noble v. Murphy, 34 Mass. App. Ct. 452 (1993). 

[2] HUD FEO 2013-01, see also Fla. Stat. § 413.08(1)(d)

[3] Id., See also, A.R.S. § 41-1491.19(D)(2)).

[4] Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133, 1136 (N.D. Cal. 2000).