disclosure fees

A s you can see, I am about a half a month behind. Seems like time goes faster every month and so I am always behind. Because of summer activities and travel, I guess I have a good excuse this time (I'll take any I can get!)

Anyway, the question of whether HOAs have to allow renters to have pets came up recently and so it seems like a good time to write about the keeping of pets. But note that these principles may apply also to other questions regarding uses of the property. So here goes.

First of all, attorneys don't agree on all points regarding pets including what constitutes a bona fide need for the disabled or "emotional therapy" pets what kind of doctor's note is needed to verify a disability or need, whether associations can prohibit renters from having pets, whether HOAs can prohibit certain breeds of pets, and whether HOAs can "evict" pets.

I'll give you my take on the questions but note - if you are part of an HOA board or you are an owner or tenant with questions, GET SPECIFIC ADVICE FROM AN ATTORNEY! You will want to have the benefit of relying on a professional opinion in case you do the wrong thing, and get sued!

Dog with boneIn analyzing things, let's start the threshold question, what does the law say? The Davis Stirling Act Civil Code 4715. Pet Prohibitions. [Originally passed as Civ. Code 1360.5 in 2001] says:

(a) 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. This section may not be construed to affect any other rights provided by law to an owner of a separate interest to keep a pet within the development.

(b) For purposes of this section, "pet" means any domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed to between the association and the homeowner.

(c) If the association implements a rule or regulation restricting the number of pets an owner may keep, the new rule or regulation shall not apply to prohibit an owner from continuing to keep any pet that the owner currently keeps in the owner's separate interest if the pet otherwise conforms with the previous rules or regulations relating to pets.

(d) For the purposes of this section, "governing documents" shall include, but are not limited to, the conditions, covenants, and restrictions of the common interest development, and the bylaws, rules, and regulations of the association.

(e) This section shall become operative on January 1, 2001, and shall only apply to governing documents entered into, amended, or otherwise modified on or after that date.

Some things are important to what we are looking at here [most relevant] (1) The law speaks to owners, not renters, (2) there is a grandfathering requirement for existing pets when new rules are passed, and (3) it is not retroactive prior to 2001 when it came into effect so HOAs with documents recorded prior to that date are not affected UNLESS they have amended a governing document (which most have).

Next, but equally as important as the law, look at the governing documents. Here are some things to keep in mind.

Here is an example of a Pets provision in a set of CC&Rs:

"Pets. Owners are allowed to keep fish in aquariums, domestic birds in cages and/or up to a combination of two domestic cats or medium to small breeds of dogs (defined as under 60 pounds)." Ok so far, no reference to tenants. But what if it went on to include "Guests, invitees, and tenants are not allowed to have pets, unless the owners are present during that period, except as may be required under applicable State and Federal Fair Housing Laws."

With the last sentence, this would be the most specific legally enforceable reference and would apply to prohibit guests, tenants and invitees (service persons) to have pets, except of course if allowed because of disability-related law. If there is no reference to tenants keeping pets, then see the next paragraph.

If the governing documents allow owners to have pets, and the question is asked whether this means tenants can have pets, it doesn't necessarily. But this is where attorneys start to disagree, often based on their own experience in this field. There is more to consider (that's why I get the big bucks! Ha Ha)

The section relating to delegation of rights from owners to tenants has to be considered and becomes important because it defines what can be delegated. Here is a sample of a clause I usually include in CC&Rs.

"Delegation of Use. If any Unit is leased or rented to others, lessees shall receive the right to use the Common Area under assumed delegation by the Owner of the Unit. The Owner shall be responsible to take whatever steps are necessary to assure that the tenants and/or guests are familiar with the Governing Documents and Rules of the Association and that they comply with all of the Rules and Regulations of the Association. Owner shall provide to tenant(s) copies of all Rules and Regulations of the Association and shall be responsible for tenant and guest conduct. All delegated rights are subject to suspension. When rights are delegated in this manner, Owner is not entitled to use the Common Area facilities and parking spaces."

Cat and birdsSome documents create a quandary because they delegate rights instead of "use of the common area" or toss a wider net saying tenant may use the "property" as an owner would, or something like that. The above clause was not meant to be interpreted to allow tenants the same rights of owners with regard to keeping pets or other such uses. It is meant to make it clear the tenant gets to use the common area for parking and gets to use the recreation facilities to the exclusion of the owner (unless they treat the owner as a guest). It is intended to overcome the Liebler decision discussed below. Allowing tenants and owners to use parking spaces or recreation areas obviously increases the burden on these facilities.

So, an owner of a unit under the above-stated delegation clause is not generally bound by it to allow renters to have pets except that a disability could come into play. The FEHA could force an issue if an owner refused a pet to someone who claims a disability or the emotional or service need for the pet.

Doctor's notes - what can you ask for? Attorneys don't really agree on this. Some take the most cautious approach which is to allow the pet if the tenant provides a doctor's note saying that the person needs the pet and names a disability including depression. The letter could be bland without going into diagnoses. That's the view I take.

I used to advise that a board could be more demanding about the letter, but an association got burned that was persistent in simply ordering the dog gone until the note was produced. Now I take the position that asking for the note pending a decision on whether to "evict" the dog is the best and safest approach. I believe the benefit of the note is to protect the HOA Board decision to allow the dog and avoids precedent because acceptance relates to a disability for which the board has confirmation. Other attorney push for more specificity. There is a case that suggests getting too pushy is not acceptable. So we are all walking a fine line between what is acceptable or not in pushing for doctor information and whether the FEHA will bring a case or not to further protect the disabled.

The experience that leads me to where I stand on the issue relates to a binding California case involving a condo association in Auburn, California. The outcome of the final appellate decision was that the owners who had the dog could keep it - hence, the coining of the phrase the "Pookie Principle" (i.e., the right to have an emotional therapy dog). The owner had vowed she would fight to keep the pet and knew how to get around the no dog rule the board was trying to enforce. The manager vowed with equal vehemence she would lose. Neighbors were complaining about excessive barking, loose dog in the common area or other problems.

I leaned toward accepting the pet but requiring a doctor's notice or evidence of the Board's prudence, and to prevent precedent (this was a no dog community).

But the Board chose a more assertive approach (on advice of strongly opinionated management I believe) and ordered immediate removal of the dog. Ultimately the association went under attack by the FEHA and although rulings at the administrative level and then the trial court went back and forth in favor of or to the detriment of each party, the final result was the "Pookie Principal" and then the law in the Davis Stirling Act allowing owners in California to have one pet.

But back to tenants. Neither the "Pookie Principle" case nor California law specifically gives tenants in HOAs the same rights as owners to keep a pet. In an association that doesn't ban tenant pets, the owners are individually responsible for their decisions about whether their tenants can have pets. That puts a layer of insulation between HOA and the owners/tenants with regard to pets and disability matters.

The area of allowing or saying no to emotional therapy pets whether belonging to an owner or tenant is dicey. I believe the better way to deal with pet issues is to have strict rules that punish when pets that cause problems, and rules that allow consideration or a removal order under the most eggregious of circumstances (dog threats, attacks, bites, constant barking, etc.) There should be a viable argument that offensive dogs do not qualify as service or emotional therapy dogs, unless of course the owner or tenant gets depressed when they cannot threaten their neighbors with a mean dog (which no doctor would sign of course!).

And a board can always hold the owner of the unit responsible for any problems. It is important to put pressure on the owner to deal appropriately with their tenants when the tenant is responsible for rules violations.

Since tenant stays are temporary, and the Owner of the property ultimately has responsibility for the conduct of the tenant and his or her pet, the rules could provide for immediate removal of any pet that causes damage or injury, that threatens people, pets or property, or is seen off leash repeatedly and disciplinary action including severe monetary penalties against the owner. Of course I have to add that if your governing documents are short on authority or contain language that would conflict with this type of rules, there would be a problem in enforcing them.

Boston TerrierLandlord Owners and Closing Principles

As for landlord owners, if you want to protect your property you should be able to prohibit pets. If you have an agreement that requires the renter to sign a commitment to pay extra security deposit for a pet and agrees to pay for all penalties as part of the contract if the rules are violated it could discourage any bad behavior with regard to pets. You can take a firm stand on pets. If you get a tenant who claims to need a pet for some disability, consult a lawyer. A certificate from the internet saying the tenant has a certified service dog is not enough. You have a right to ask for a doctor's letter stating the problem and the nexus between the disability and the need. But fighting for extra details and pushing for too much information can get any landlord, owner, or HOA into trouble with the FEHA.

My advice for HOAs is to utilize the provisions in the CC&Rs to promulgate very strict rules, circulate them to the members for comment at least 30 days before Board approval, follow the statutes on approving and distributing rules. As for landlords, require renters to sign agreements to penalties and ramifications if the pets cause problems both outside or inside the unit, and that should help all concerned.

Here are some points from the California Liebler case dealing with delegation of rights including rules: In that case, a board attempted to prohibit an owner from using the tennis facilities when his place was rented to someone else. Leibler says that all rights were delegated and the Owner could not use the courts while his home was rented.

But again, remember to read YOUR delegation clause before accepting this on its face. Leibler said that rules cannot be inconsistent with the CC&Rs and that except for voting rights and the right to attend board meetings, which are reserved to members only, renters enjoy all the rights and privileges of an owner when they rent a unit. and if an owner wants to pass on his right to keep pets to his tenant, the association cannot interfere with that right. I do agree with that last very last finding.

I just don't agree the owner MUST allow a tenant to have a pet just because the owner could have a pet. I would argue that the Liebler decision dealt only with the transfer of common area usage rights to a tenant, and having a pet is not a common area right.

Consider also that apartment building owners routinely prohibit tenants from keeping pets in apartments. So there's that helpful analogy.

If you are on a board, don't let your individual feelings or perception of the law, or the vehemence of the manager direct you one way or the other. Get a knowledgeable attorney's advice on this question because there is California law that protects directors from individual liability when they rely on the advice of experts.

Next maybe you want to find out if miniature horses or goats or chickens may be kept as pets. California law does not use goats or fowl or anything like that in the definition of what constitutes an acceptable domesticated pet. But it allows for "other pets" as agreed to between the association and the homeowner. So the CC&Rs definitely come into play, as does Board consent, as deciding (and/or limiting) factors. And there was that case years ago about an owner arguing that a miniature horse he owned was a necessary service animal/pet to counter his depression. And I had a question the other day as to whether "bird" in the statute included chickens. I would say chickens qualify as fowl, not birds, and there are local zoning ordinances in some municipalities banning fowl (chickens and roosters) - which would make a good point if someone is trying to stretch the definition of chicken or rooster to "bird".

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I am an attorney who serves homeowner associations and homeowners alike (not inthe same association of course). I am a frequent contributor to the Echo Journal and other similar publications in the State of California and also contribute articles on a national level. There are several publications written in plain English onmy website written specifically to help people who need information about California law as it relates to homeowner associations. There is a wealth of information here on the website. I like to do service and have been lucky enough to be named Author of the Year by CAI after my first book, and was named 2011 Volunteer of the Year by the Executive Council of Homeowners.

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I have a private law practice in Pleasant Hill, but serve homeowners association and homeowners throughout the State of California. My practice is in large part now web based and telephone consultations are available. I have clients all over the state and am a real "road warrior".

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