PROHIBITING PETS

QUESTION: Our CC&Rs prohibit pets. We are fearful that the new election law may affect our restriction.

ANSWER: Your fears are well founded. By requiring all associations to adopt election rules, the legislature inadvertently voided all pet prohibitions in California. Any governing documents modified after January 1, 2001 must allow pets. As provided for in Civil Code §1360.5(a)&(e):

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

Rule Change. Election rules are part of an association's Rules & Regulations. Civil Code §1357.120(a)(7) Rules & Regulations are defined as governing documents. Civil Code §1360.5(d) Therefore adoption of election rules immediately voids pet prohibitions and allows owners to have birds, cats, dogs, and aquatic animals kept in aquariums. Civil Code §1360.5(b)

Your board cannot preserve your pet restriction by refusing to adopt election rules since all associations "shall" adopt election rules. Civil Code §1363.03(a) Therefore, the legislature has intentionally or unintentionally voided your pet restrictions.

Office of Legislative Counsel. At the request of Senator Kuehl, the Office of Legislative Counsel reviewed the underlying statutes affecting pets and arrived at the same conclusion. On July 19, 2007, the Office issued an opinion letter:

. . . it is our opinion that, under Section 1360.5 of the Civil Code, the adoption of a rule by a common interest development to comply with the election requirements of Section 1363.03 of the Civil Code renders unenforceable a provision of the governing documents of that development that prohibits the keeping of at least one pet.

RECOMMENDATION. Although the opinion of Legislative Counsel does not have the force of an Appellate Court decision, it will certainly be taken into account when judges rule on pet disputes. In my opinion, judges will likely conclude that associations must now allow pets. Accordingly, boards should seriously consider amending their CC&Rs to limit the number, size and breeds of pets in their developments. If they do not, pet ownership could be unrestricted, i.e., multiple dogs per owner, Pit Bulls, etc. Moreover, if pets are brought in before new restrictions are adopted, the pets are automatically grandfathered and associations cannot force their removal. Civil Code §1360.5(c)

QUESTION: Can we keep our pet prohibitions by treating the new election requirements as "procedures"?

ANSWER: The statute refers to them as election rules, not election procedures.

QUESTION: Does this invalidate all pet restrictions or only pet prohibitions?

ANSWER: It only invalidates pet prohibitions. Restrictions on the number and size of pets remain valid and enforceable.

QUESTION: We amended our CC&Rs in 2001, but not the pet prohibition. Instead, we wrote pet rules that restricted the size & number of pets (1 dog at 15 pounds). Since we have not amended the CC&Rs could someone still bring in a large dog?

ANSWER: Your rules are sufficient to keep out large dogs. Amending your CC&Rs will make your restriction stronger. The 15-pound limitation is good in that it virtually eliminates all dangerous breeds. In addition, it means that your board can adopt rules requiring owners to carry their dogs in the common areas, thus eliminating many potential problems such as entangling other owners in leashes, "ankle-biting", unwanted urine and feces in the common areas, etc.

If your association needs help drafting and/or enforcing pet restrictions, contact us.

Updated by ADAMS KESSLER 8/29/2008