Generally speaking, a HOA property management company will tell you that homeowner association (HOA) governing documents are straightforward on the workings and responsibilities of the HOA and the individual HOA members. Of course, this point can be argued with all the thousands of attorneys drafting HOA governing documents with varying levels of competence. With this being said, there is probably no provision in almost all homeowner association (HOA) governing documents more confounding than the provision on “pets” within the HOA.
Confounding in two primary ways. First, the details drafted into the “pet” provision of the HOA’s governing documents. Commonly, HOA’s established in the 60s, 70s, or earlier, have “pet” provisions that tend to be very brief, or even fail to address this topic. Property management companies say that it is more common than not to find older HOA governing documents with only a paragraph dedicated to pets within the HOA. Today, it is not uncommon to find an entire page, or even two pages, solely dedicated to HOA members and their pets.
The second confounding issue is the difficulty in adequately drafting “pet” provisions in the HOA’s governing documents. This is even considering the more detail placed within, and the attempts at covering every eventuality, that have been drafted into governing documents within the last ten years. Predicting what HOA members will do with regard to their pets can be akin to accurately predicting earthquakes. A good HOA property management company can assist you with this sensitive topic.
The governing document that the “pet” section is typically located in are the covenants, conditions, and restrictions (CC&R). The rules and regulations typically have “pet” provisions that are more refined from what is located within the HOA’s CC&Rs. For example, the CC&R’s may state: “Dogs have to be curbed.” The HOA’s rules and regulations could expand on this and state: “Dogs must be walked in the common area designated as a dog run.” Pet provisions or pet language may be mentioned in the “nuisance” section of the CC&Rs as well.
Brevity of “pet” provisions in CC&Rs cannot only be detrimental to enforcement, brevity can even aid individual members in circumventing the original intent of the provision. The following “pet” provision example is from a CC&R recorded for a single-family HOA established in 1976.
Section 13. ANIMALS. No animals, livestock, or poultry shall be raised, bred, or maintained on any Lot, with the exception of dogs and cats.
While this provision may appear to be straightforward and clear. One top HOA property management company stated that this was far from the case when the HOA board of directors attempted to end a member’s dog breeding business. It was estimated that the member had close to twenty dogs in her home and yard. Reading the “pet” provision pay special attention to the underlined words: No animals, livestock, or poultry shall be raised, bred, or maintained on any Lot, with the exception of dogs and cats. So, how an attorney would read that back in court is: “With the exception of dogs, breeding is not allowed.” As a matter of fact, according to one HOA property management company, that is exactly how the HOA member’s attorney read that “pet” provision back in court. It is obvious to everyone, that allowing a puppy mill in this residential HOA with twenty dogs was not the original intent of the drafter of the CC&Rs, but that was the result. While it may be easy to criticize the attorney who drafted this provision in this manner, in 1976 anticipating a puppy mill could be a bit farfetched.
Even more detailed “pet” provisions drafted since 1976 may not be able to anticipate every possibility. However, what is apparent is that attorneys experienced in HOA legal matters attempted to put provisions in place that attempted to address more and more problems that had arisen through the years. The “pet” provision below was taken from a single-family HOA established in 1994:
Section 7.20 Animals and Pets. Except as otherwise permitted herein, or in any amended Declaration, no animal or animals or any sort of animal whose normal activities or existence is in any way noxious, dangerous, unsightly, unpleasant, or of a nature as to diminish or destroy the enjoyment of other Lot Owners or tenants, and their guests, may be maintained on a Lot or Improved Lot. No animals, livestock, or poultry of any kind shall be raised, bred or kept on any Lot or Improved Lot. No more than three dogs, three cats, or three other household pets may be kept in each Dwelling Unit and/or Improved Lot, unless otherwise approved by the Board of Directors. No animals can be kept, bred, or maintained for any commercial purpose. Household pets at no time shall be allowed to run free, and at all times when off the Owner’s Lot or Dwelling Unit, such household pets shall be on a leash.
As compared to the “pet” provision written in 1976, it is apparent a great deal has happened in HOAs in those eighteen years. Or simply said, the attorneys who draft governing documents have gained more experience on the “pet” topic. While the provision written in 1994 is more detailed and covered more potential issues than the one written in 1976. As evidenced by the following “pet” prevision written in 2018, even more experience has been gained.
Section Eleven. Control of Pets. Every person, not limited to Lot Owner’s, owning, or possessing, having charge, care, custody, or control of any dog, cat, or other uncaged pet shall keep such pet exclusively inside their own residential home or inside the confines of said Owner’s Lot; provided, however, that such pet may be off the Owner’s Lot if it be under the control of a competent person above the age of eighteen. Under control is defined as, but not limited to, restrained by chain, leash, or other means of suitable physical control. Without exception, all Lot Owners, their family members, their guests, and their tenants, must control their pets at all times, whether or not such Lot Owner is present, in a manner that will prevent any pet from (i) making noise at objectionable levels of sound for an extended period of time, whether continuously or intermittently, (ii) endangering the health, safety, or well-being of other Lot Owners, their families, their guests, or their tenants or creating an atmosphere of fear in other Lot Owners as to the safety of themselves, their families, their guests, or their tenants, or (iii) otherwise constituting a nuisance or inconvenience to the Owner(s) of any other Lot; all of the foregoing as determined by the Board of Directors of the Homeowners Association. Any pet identified by the Homeowner Association or any governmental agency or authority, as a potentially dangerous animal constituting an unreasonable risk or threat to any other Lot Owner, their families, their guests, or their tenants or as to others generally, whether or not such risk or threat is deemed immediate or imminent, or any Lot Owner or other Lot Owners generally, whether due to the type, kind or species of such animal, or its size, natural proclivities or inherent nature, or as a result, whether in whole or in part, of the known tendencies, habits, disposition or history of such animal, or as a result of the manner in which such animal generally is supervised and controlled by its owner, or for any combination of any of the foregoing reasons, shall be subject to such further restrictions or control as the Homeowner Association may in its absolute discretion deem appropriate. Further restrictions or control may include, but not limited to, any one or more of the following supplementary requirements: (a) constant restraint of the animal by means of a chain, leash, muzzle, cage, or other means deemed appropriate and approved by the Homeowner Association at all times while such animal is outside a Lot Owner’s residential unit, even while such animal is on such Owner’s Lot; (b) limitations on the time periods or durations that such animal is permitted to be outside of its Lot Owner’s residential unit; (c) prohibiting the animal to be outside at any time without its Lot Owner or Owner present; or (d) permanent removal of the animal from the Homeowner Association.
No livestock, poultry, can be bred, raised, or maintained on any Lot or within a Dwelling or a secondary structure on a Lot.
Even with more detail in this “pet” provision, it is still impossible to anticipate how another HOA member will behave with their pet. Many times, if the governing documents are not clear or something is not addressed, litigation may be the only solution to correct a pet violation. Which brings up its own issues of judges looking to the HOA’s governing documents to anchor their judicial decision. There was a court case involving a member of an HOA whose dog had bitten three different people on three separate occasions. The HOA board of directors was attempting to obtain a judicial order to force the HOA member to remove the dog from the HOA. The magistrate, after listening to both the plaintiff and the defendant’s testimony, asked the HOA’s attorney; “Where does it say in the covenants a member cannot have a dog?” The HOA’s attorney responded, “There is nothing in the documents forbidding dogs within the HOA.” The judge then asked; “Where does it say HOA members can’t have dogs that bite?” The HOA’s attorney responded with there is nothing specifically stating that, however, if you look at the nuisance clause, we feel that clause gives the plaintiff grounds for this action. The magistrate responded with; “Nuisance clause? Isn’t biting what dogs do?” Fortunately, most magistrates have a better judicial understanding than this magistrate but enforcing pet restricting can be a challenge even with the best written governing documents and the best of judges. A competent HOA property management company can assist you with enforcing the HOA’s rules and regulations.
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