One of the most difficult issues which homeowners associations and association management companies must deal with is the issue of pets. For many, their pet (be it a cat, a dog or something else) is like a family member, and rules and regulations relating to pets (such as limitations on the number and types of pets, weight restrictions, nuisance barking and pet waste cleanup guidelines) can provoke a strong emotional reaction from homeowners who own them. Fortunately for associations and their management, the law provides some clear guidance as to “dos” and “don’ts” relating to common pet-related issues. The purpose of this article is to summarize the pertinent legal standards related to pet-related rules and restrictions faced by homeowner’s associations.
In a remark that will go down in infamy for pet owners, many years ago the U.S. Supreme Court observed that government bodies may be entitled to ban pets altogether. While many local units of government bodies have imposed restrictions on pet ownership, including measures such as “dangerous dog” laws and the like, none has been so bold as to ban pets altogether, which could run up against the constitution. But homeowner’s associations, private entities, have the capability, legal ability and latitude to do so if they wish. A “no pets” policy would generally not be politically appealing, but it is probably lawful.
Another limitation on the authority of associations to proscribe pets concerns the disabled. Under a number of Federal and state laws, including the Fair Housing Act and the Americans with Disabilities Act, along with their state and local counterparts, have been interpreted to bar homeowner associations from limiting pet ownership for people who need them for legitimate disabilities. Therefore, traditional service dogs, like Seeing Eye dogs, cannot be proscribed. Courts have ruled that individuals with mental or emotional disabilities who need pets to shore up their psyches, are covered by the disability laws and, therefore, are entitled to maintain pets, even if an association has a “no pet” policy. In one notable case, a grieving widower was awarded more than $160,000 by a jury against a homeowner’s association that barred him from owning a pet that was medically prescribed for him to quell his grief after his wife’s death.
If they pay attention to these limitations, homeowner associations can proscribe, or restrict pet ownership. One of the most common ways to do so is by limiting the number or size. By size limitation, either on the animals themselves or the number that can be kept within a household. Courts around the country have reached different results on pet limitation laws enacted by government bodies, but some courts have upheld the unlimited authority of government entities to limit the number of dogs, cats, and other pets within a household. If they can do so, assuredly homeowner associations can do likewise. Alternatively, they can enact measures that restrict the size or weight of animals, usually directed to dogs.
Some pet-related issues arise in the context of more general restrictions, such as excessive noise violations (from “nuisance barking”, for example) or a homeowner’s failure to clean up his or her pet’s waste from common areas. While a homeowner’s association has the discretion to enforce its covenants or rules related to noise violations or common area cleanup, care must be taken to enforce the covenants and rules against all homeowners and not to single out pet-owning homeowners for penalty, in order to avoid claims of selective enforcement and/or discrimination.
While they have broad discretion in enacting and imposing pet-related restrictions, homeowner associations often run into trouble when they do not enforce their restrictions even-handedly. Claims of discrimination abound when homeowner associations are inconsistent in enforcing pet-related restrictions. On the other hand, associations do not need flexibility in addressing particular circumstances. Therefore, it is prudent to have waiver policies as part of any pet-related protocols, which gives association boards the needed latitude in addressing exceptional or unique situations without undermining the basic principle of even-handed enforcement.
Dealing with the multitude of people who populate community associations poses ongoing problems for those who run or manage them. Dealing with those problems can be compounded when dealing with pets. Homeowner associations need to be careful in enacting and enforcing pet-related restrictions in order to avoid facing legal issues.
Given the many issues that can arise surrounding pet issues, many community associations and management companies urge owners having issues with neighboring pets to report their issues to local animal control authorities to help with resolving these issues. Not only does this prevent legal troubles for Associations, these authorities often have the most immediate means of mitigation of pet related problems. They can often issue citations, issue fines, remove problem animals, and take other actions to prevent further issues with pets who have become problematic.