4.04 Pet Restrictions

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.04 Pet Restrictions¹³⁰

A. Generally

Restrictions on pets are common in condominiums. They are nearly always upheld by courts which are generally receptive to arguments about health and noise concerns.¹³¹ For example, a Massachusetts court¹³² allowed that:

unit owners are not required to conduct investigations or cite authorities in order reasonably to conclude that the presence of pets within the condominium may interfere with their health, happiness, and peace of mind. It is a subject well within their common knowledge and competence.¹³³

Outright bans on pets have been upheld.¹³⁴ Specific restrictions such as leash requirements,¹³⁵ and limitations on the number¹³⁶ or kinds¹³⁷ ofpets have also been approved by courts. On those rare occasions when restrictions are negated, the decisions are based on procedural errors by associations,¹³⁸ although there is the odd opinion invalidating restrictions on substantive grounds.¹³⁹ In one case¹⁴⁰ an association both annoyed the court and failed to have its actions sustained. Apparently some untidy dog had despoiled the common property one time too many and the association sought to "evict" it. The trial court found for the canine and, pursuant to a declaration provision, awarded attorney's fees to the unit owner. In affirming, the appellate court added appellate fees and a rather peevish comment that it was not "uninfluenced by the hope that this result ... will discourage the maintenance of such actions — of which 'trivial' is a hyperbolic description."¹⁴¹ Clearly, the association had not followed proper procedure. The importance of following procedure and enforcing pet restrictions was demonstrated in a case where there was a judgment against an association for damages caused by a dog attack on its premises.¹⁴²

One common pet restriction is illustrated by Wilshire v. Kohlbrand.¹⁴³ The declaration stated:

Dwelling unit owners . who own dogs (commonly known as lap dogs) at the time of purchase of such dwelling unit, shall be permitted to keep and harbor them in the condominium, provided however, such dog shall not be replaced upon death or otherwise.¹⁴⁴

The court found the "replacement clause" to be reasonable and enforceable and said "we adopt the view that a restriction against replacement of dogs is reasonably consistent with principles that promote the health, happiness, and peace of mind of unit owners living in close proximity."¹⁴⁵

In Dulaney Towers Maintenance Corp. v. O'Brey¹⁴⁶ an administrative rule directed that:

One dog or one cat may be kept by the unit owner or occupant, but shall not be kept, bred or used therein for any commercial purpose.¹⁴⁷

The court approved the restriction as reasonable and observed:

. the courts have adopted a hard-line approach and have upheld condominium board of director's regulations as to dogs, even to the exclusion of dogs, as being reasonable and enforceable. The courts stress that communal living requires that fair consideration must be given to the rights and privileges of all owners and occupants of the condominium so as to provide a harmonious residential atmosphere. The rationale for allowing the placing restrictions in, or barring of pets by way of, house rules is based on potentially offensive odors, noise, possible health hazards, cleanup and maintenance problems, and the fact that pets can and do defile hallways, elevators and common areas.¹⁴⁸

Given the sometimes extreme emotions generated by disputes over pets, it is not surprising that governing boards of condominiums may on occasion opt to ignore their written rules and attempt to enforce unwritten bans on pets. That, however, is a perilous course of conduct. In Chateau Village North Condominium Ass'n v. Jordan,¹⁴⁹ the board was permitted by the declaration to either prohibit or regulate pets. The board adopted a rule proscribing pets except those expressly permitted in writing by the board, but chose to implement its unwritten policy against any new pets. Jordan was denied permission to keep cats in her unit. The court decided that if the rule gave unit owners the right to apply for permission, the board was required to consider the application and use discretion in a reasonable and good faith manner. A blanket policy was not an exercise of discretion in the court's opinion.

B. Medical Conditions and Reasonable Accommodation¹⁵⁰

Even though the governing documents or the rules of the council of co-owners may bar pets, residents may be allowed to keep "service animals" in their homes. Under the federal Fair Housing Act (FHA) it is discriminatory and illegal to refuse to make a reasonable accommodation to rules, policies, practices, or services if that accommodation may be necessary to afford equal opportunity to use and enjoy a dwelling.¹⁵¹ Thus, an exception to a pet restriction may be available under federal law.

The leading case on the issue was decided by the federal district court of Hawaii.¹⁵² The association there amended its no pet policy in an attempt to satisfy federal law by establishing an exception for "assistance animals." A unit owner sought an exemption from the no-pet policy and his request was supported by a medical opinion that "animal-assisted therapy" would be beneficial to him. The court said that to prevail on a claim based on failure to make a reasonable accommodation, the plaintiff has to show he or she is handicapped¹⁵³ within the meaning of the FHA,¹⁵⁴ that the defendant knew or should have known of the handicap, that an accommodation may be necessary to afford an equal opportunity to use and enjoy a dwelling, that the accommodation is reasonable, and that the defendant refused it. Because the FHA does not define "service animal," the court chose the Americans with Disabilities Act (ADA) definition which includes "'any guide dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability.'" The court concluded that a service animal was one for which there was something that set it apart from ordinary pets, for example, individual training.¹⁵⁵ Where there was an alleged "mental handicap," the Hawaii court said the service animal had to be "peculiarly suited to ameliorate the unique problems of the mentally disabled." The court agreed that generally, waiving a no-pet rule to permit a service animal would be a reasonable accommodation, but it found the plaintiff failed to make a case under the FHA.¹⁵⁶

The Hawaii decision seems to offer fairly clear direction, however, the United States Departments of Justice and Housing and Urban Development (HUD) have jointly issued a report entitled "Reasonable Accommodations Under the Fair Housing Act."¹⁵⁷ It has added some confusion to questions about service animals. The report addresses a number of issues including:

• Terminology. The FHA uses the term "assistance animal," which is not the same as "service animal," a term found in the Americans with Disabilities Act. A service animal must be a dog "trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." An assistance animal "works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects" of a disability. It does not need to be a dog or to be individually trained or certified.¹⁵⁸
• Formal Procedures for Evaluating Reasonable Accommodation Requests.
A council of co-owners may have formal procedures to address requests for exceptions to a no-pet rule and the council attorney will generally want the procedures to mandate a written application with documentation. HUD, however, says a request cannot be refused because the applicant did not follow formal procedures. The council has to give "appropriate consideration" to a request despite the fact the petitioner fails to

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