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Berding|Weil

Enforcement of Pet Restrictions

By Steven S. Weil, Esq.

Introduction

In a recent B&W Alert (“In California, there are three types of animals…”) we addressed a resident's right to keep service and companion animals even if the CC&Rs for their community ban pets. The gist of that article was that state and federal law “trumps” the CC&Rs to create exceptions that prohibit an association from enforcing pet bans in medical- related situations. The thrust of this article addresses enforcement issues when the governing documents ban pets and no medical exception applies.

Pets are serious business. According to an article in the New York Post published earlier this year, a “down on his luck” actor committed suicide because of pressure from his Manhattan condo association complaining about his pit bull “Rocco.” The actor—who himself had been raised in an orphanage and foster homes—adopted his beloved pet from a shelter and they had a strong connection; his Facebook page allegedly said “I did not rescue Rocco, Rocco rescued me.” Thereafter, the association approved strict pet regulations and a ban on pit bulls; even though Rocco was “grandfathered”, neighbors complained and harassed him so much that the owner put his pet “to sleep.” Despondent, the owner killed himself a few days later.

Our state is ambivalent about pets. In 1994, the Supreme Court upheld an absolute ban on pets finding it was not unreasonable, unlawfully discriminatory or contrary to public policy (Narshtedt v Lakeside Village). On the other hand, we have disability laws that do not permit the ban to be applied in certain medical situations and a law enacted after Narshtedt which guarantees a resident the right to keep at least one pet in associations whose governing documents were adopted or amended after January 1, 2001. It is a complicated web. To help a board know the legalities, we've here assembled another of our “Rules and Tools” articles.

Rules

CC&Rs are limitations and restrictions on the free and unfettered use of property. To be enforceable under Civil Code section 5975, CC&Rs must not be unreasonable, unlawfully discriminatory or violate public policy. An owner challenging a restriction has the burden of showing these things and, in particular, that a provision is unreasonable as applied throughout the community. An association may also adopt rules that implement the CC&Rs but the enforcement standards are stricter: if enforcement action is based on the violation of a rule the association has the burden of demonstrating that a rule is reasonable and that it bears a reasonable relationship to use of property.

These are the principles that apply to pet bans or lesser forms of regulation. Limitations can run from pretty tame (“residents must control their pets”) to most extreme (“no pets allowed on the development”) to somewhere in between (“pets must be registered and cleaned-up after”).

Older CC&Rs sometimes deal with pets based on weight: “no dog whose weight exceeds 50 pounds may be kept onsite.” Recently, some associations consider banning dogs based on dog breeds. No California case has addressed the issue although it is a “hot issue” here and throughout the country. Cities such as Denver, Colorado and Toledo, Ohio have pit bull bans that were upheld by the courts in those states (although Massachusetts now has a law that prohibits cities from “breed bans”). A Kansas court – in Hearn v City of Overland Park went pretty far: “[P]it bull dogs represent a unique public health hazard . . . [possessing] both the capacity for extraordinarily savage behavior . . . [a] capacity for uniquely vicious attacks . . . coupled with an unpredictable nature" and that "[o]f the 32 known human deaths in the United States due to dog attacks . . . [in the period between July 1983 and April 1989], 23 were caused by attacks by pit bull dogs." And, perhaps at the most extreme, the 2011 decision in the Maryland case of Tracey v Solesky applied “strict liability” holding that anyone who can control a pit bull or pit bull mix is liable for injuries it causes regardless of fault; in other words, the landlord who has the right to control the pit bull's presence on the premises can be held liable for victim's claims even if the tenant fails to properly ensure the animal is restrained or won't attack others. No case has gone this far in our state but it isn't hard to imagine an association “in the crossfire” should a dangerous breed attack.

It used to be said that an owner wasn't liable for dog attacks until the second incident; this “one bite” rule is not the law; the key liability issue is whether dog attacks are foreseeable and if so, whether the owner (or the association if the attack took place on common area) took reasonable steps to protect those that might be attacked. The focus on pit bulls illustrated in the cases cited above is an expression of this rule: that some dogs have a propensity to attack can mean that their owners are “on notice” of potential problems simply because of the breed.

While certain breeds may have a propensity towards violence, a heavy dog is not necessarily dangerous or incapable of being kept under control by its owner. Enforcement of a ban based on weight would probably require an association to show that weight per se raises risks that should not have to be accepted by the community at large. A rule based on weight alone may be hard to sustain but other approaches are discussed below.

In 2000, our state legislature tried to find a compromise between the deep connection we have to our pets and a community's right to adopt its own CC&Rs and rules to regulate the behavior of its residents. Under Civil Code section 4715, a ban on pets contained in governing documents amended or adopted after January 1, 2001 cannot be used to deny a resident the right to keep at least one pet (basically a domesticated bird, cat, dog or an aquarium-based fish). The law also forbids adoption of new rules that have the effect of banning an existing pet that would have been permissible under prior existing rules.

This law – a short one by Davis-Stirling standards with only 5 subparts – raises many questions. For example, it says a pet ban is not enforceable as to at least one pet if the association adopts or amends the governing documents after January 2001; does that apply if the adoption or amendment was intended to comply with a law that mandates new CC&R or rule changes? For example, Civil Code section 4225 requires a board to amend governing documents to eliminate discriminatory provisions; section 5105 requires an association to adopt “secret ballot” election rules. An association whose CC&Rs contain an absolute pet ban may have to choose between preserving it and violating the law or following the law and losing the ban.

Another question concerns how section 4715 is applied. It says an owner can keep at least one pet but doesn't specify whether the particular pet kept is chosen by the owner or by the association. It is easy to envision that an owner wants that one pet to be their dog while the association, conceding a pet may be kept, wants it to be a bird or a fish.

The very sad story reported in the New York Post may present an extreme case but at its core it raises what might be the salient fact in dealing with pet issues: owners love their pets and separating a pet from an owner is very difficult regardless of the CC&Rs, the rules or the law. Some tips on dealing with the issues follow.

Tools

  1. Confirm the scope of current regulation: A board – perhaps with help from management or counsel – should determine whether and to what extent the maintenance of pets is regulated in the community.
  2. Determine if the scope of regulation is adequate. In some associations, the CC&Rs are adequate to provide the level of regulation desired; in others, the CC&Rs may need to be amended or rules will need to be adopted.
  3. Confirm the rules are lawful: The board cannot adopt a rule that is more restrictive than the CC&Rs and any rule must be consistent with the CC&Rs, written and adopted only after the 30 day member comment requirements of Davis-Stirling.
  4. Hold a meeting/give good notice: no matter how “tight and legal” the CC&Rs or the rules are, disputes are inevitable. These can be minimized by inviting owners (and tenants) to discuss pet restrictions and limitations; people are more likely to comply with a limitation if their views were first considered before its adoption. Include pet limitations in periodic disclosures (like newsletters) and those provided in escrow.
  5. Consider specific regulations: These include requiring pets to be registered; limiting the number of pets; specifying that certain kinds of behaviors are a nuisance; requiring that a pet always be “under the control” of an owner; define “under the control” (does it mean verbal command, leashed, subject to an “electric fence” etc.; are limitations based on breed desirable for the community; limiting areas where pets are permitted or banned, including “paths of travel”; require “clean up” rules and make them easy to follow; consider a “pet committee”; define pets which are acceptable and which are not; clarify noise limitations and use of muzzles; define the circumstances under which pets must be removed from the community (such as “after a second bite” etc.).
  6. Be prepared: Enforcement of pet restrictions is not easy because people are so connected to their pets and owing to “precedent.” Some violations won't be pursued because they are minor, or occur infrequently, or for other reasons. Focus on conduct in pursuing violations (and not weight which is not usually a reflection of danger or risk). Use the normal tools – fines, hearings, mediation, litigation – but remember that most pet owners will be resistant to pressure unless treated with respect and understanding.
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