An HOA Board has the duty to adopt rules known as covenants and restrictions. Those restrictions often include restrictions on HOA members owning pets. As an HOA Board member, you may wonder what is permissible, especially with regard to service animal classifications and HOA Pet Restriction Enforcement. The following paragraphs explain what the classifications are and how the Board can fit those classifications into your HOA's pet restriction enforcement rule.
Can an HOA adopt a No Pets policy?
In general, HOA Boards may adopt policies as long as they are not burdensome on the community, arbitrary, or capricious, and the board enforces them uniformly throughout the community. Some boards have adopted "no pet policies" but such restrictive pet policies are often challenged in court. Most courts uphold the policies as long as the rules:
- do not violate public policy,
- meet the arbitrary-capricious standard,
- are properly adopted, and
- the board enforces them uniformly.
It is worth noting, however, that the California legislature, reacting to courts upholding no pet policies, enacted legislation that says homeowners are entitled to have one pet.
What types of pet restrictions can we adopt?
HOA boards are free to adopt restrictions on breeds, size, number of pets, and other reasonable standards. Bear in mind, that adding new pet restrictions may not be enforceable against owners who had pets before the new rule went into effect. Most boards "grandfather" the new pet rule so as not to unfairly restrict members who were previously in compliance with the board's rules. The board would be well advised to craft these grandfather clauses (or exemption clauses as they are sometimes known) to cease upon transfer of the property or after the exempted member no longer owns the grandfathered pet. In this manner, the exemption clause will eventually fade away and the pet restriction will apply to all HOA members.
Note: As discussed below, special rules affect service animals for people with disabilities.
How do we enforce our pet restrictions?
Pet restrictions are enforced the same way all HOA rules are enforced. The HOA may:
- impose a fine if the HOA policies provide for fines;
- seek legal redress;
- file a civil action seeking an order demanding the owner remove the pet from the premises. HOA members refusing to obey the court order may be held in contempt resulting in court fines or even jail.
It is imperative that the board enforce pet restrictions uniformly and not arbitrarily. If pet restrictions are challenged in court, a judge may decide that based on the board's past non-enforcement of such restrictions, the HOA has forfeited its right to enforce the pet restriction on anyone.
What about assistance animals?
The federal Fair Housing Act (FHA) prohibits discrimination against people with disabilities and requires reasonable accommodations for them. One reasonable accommodation includes a service animal even if the community has a no-pet policy. There has to be a connection between the service a domestic animal provides and the person's disability. Emotional support dogs qualify without specialized training under this definition.
FHA provides that restrictions on size, breed, and species cannot apply to service animals. A pet restriction against a service animal because of fear of harm to others or to property must be based on the particular animal's history, not a fear of the breed. Other non-assistance-related restrictions (waste cleanup and leash rules) may still apply to service animals. Violating the FHA is costly if the court sides with the service pet owner. Not only will courts award money damages, but they may also assess attorney fees.
The federal Housing and Urban Development Department defines an assistance animal as one that works for, assists, performs tasks for, or provides emotional support for a person with disabilities.
The Americans with Disabilities Act protects service animals that have specialized training, like seeing-eye dogs.
What are some examples of assistance that service animals provide?
Service animals provide assistance for:
- the hearing impaired
- the visually impaired
- early blood sugar level warning for diabetes patients
- severe allergy detection (peanuts, gluten, etc.)
- psychiatric disabilities (post-traumatic stress, obsessive-compulsive disorder)
- seizure detection
- mobility assistance
The following animals can make life more bearable for people with disabilities if properly trained:
- capuchin monkeys
- pot-belly pigs
- boa constrictors.
If you would like to read about a recent emotional support pet case, you may enjoy the aspentimes.com article from January 2020 entitled "Snowmass Couple Gets $50K from Creekside HOA in emotional support dog dispute."
To talk more about this topic, or anything else, please contact us. We also invite you to peruse our Rules about Service Animals.