Chapter 10 - § 10.6 • PET RESTRICTIONS
| Jurisdiction | Colorado |
§ 10.6.1—Generally297
Few restrictions generate as much conflict in common interest communities as those on pets. Often pet restrictions are included in the original documents drafted for the declarant, but sometimes they are added later after an association encounters problems with pets.298 Restrictions added later often raise questions of retroactive rule application. The restrictions commonly come in one of several forms: outright prohibitions on all pets, size or weight limits, restrictions on the type of allowable pets (usually cats are permitted, but no dogs), and very specific requirements such as leashing.
Governing boards should be advised that whether they are enforcing existing restrictions or adopting new ones, they ought to consult the association attorney before they say or do anything. In addition to monitoring the substance of any new restrictions, the attorney needs to make sure that the board follows any and all procedures for adopting or enforcing restrictions. Associations are often reluctant to contact the attorney because they do not want to incur fees. Some boards also have a tendency to follow procedures they think are proper or to enforce the rules as they perceive them to be. However, a pet dispute is one of those matters in which consulting the attorney — and thus following proper procedure, as advised by counsel — will probably save the association money in the long run.299 Americans treat their pets as their children and consequently seem to possess an almost biological imperative to protect them.300 They will spend an astonishing amount of money fighting pet restrictions in court, instructing their lawyers to raise every conceivable substantive and procedural issue in defense of poor Fluffy. For that reason, many common interest communities have found themselves embroiled in protracted and costly litigation over pets. Opposing counsel can usually forget trying to negotiate a reasonable settlement. Pet litigation is the community association equivalent of a capital case.301
Pet lovers seem undeterred in their pursuit to litigate despite the fact that courts nearly always uphold pet restrictions and are quite receptive to arguments based on health and noise.302 A Massachusetts court, for example, gave pet restrictions in common interest communities a presumption of validity when it said: "Unit owners are not required to conduct investigations or cite authority in order reasonably to conclude that the presence of pets . . . may interfere with [unit owners'] health, happiness, and peace of mind. It is a subject well within their common knowledge and competence."303 A Maryland court made the same point at more length:
[C]ourts 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 of 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 other common areas.304
Given the broad language of the courts, it should come as no surprise that outright pet bans have been sustained.305 Courts have also approved leash requirements,306 limitations on the number of pets,307 and restrictions on specific kinds of pets.308
Converting a community from one that allows pets into one that does not presents legal and practical problems. The legal problem is whether a new pet restriction can be used to "evict" pets already living with their owners on the premises. The practical problem is that those owners are not going to give up their pets without a fight. The solution to both problems has been to "phase out" pets through replacement prohibitions. These have met with judicial approval. For instance, one condominium declaration stated that: "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."309 The court held the "replacement clause" was reasonable and enforceable and added 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."310
Although there is the odd decision that voids a pet restriction on substantive grounds,311 in the few instances where restrictions were rejected, the decision was based on procedural errors by an association. One example is the Colorado case of Chateau Village North Condominium Ass'n v. Jordan.312 In Jordan, the declaration allowed the governing board to either prohibit or regulate pets. The board adopted a rule that outlawed pets with the exception of those expressly approved in writing by the board. Nonetheless, the board implemented an unwritten policy against any new pets. The board then denied a unit owner permission to keep cats in her unit. However, because the board's rule gave unit owners the right to apply for permission, the court held that the board had to consider any application presented to it and apply its discretion in a reasonable and good faith manner. Enforcing a blanket "no pet" policy was not an exercise of discretion.
Historically, covenants in urban residential neighborhoods have prohibited sheep, goats, cattle, poultry, or all animals other than "pets," but they may — especially in large lot subdivisions — allow stables and horses. By contrast, in more rural settings, covenants may allow most any animals, even those kept for profit-making purposes. In these communities, individual parcels are usually fairly large — several acres — and intended to create "mini-ranches." All these various restrictions are generally upheld by courts, but usually they must be reasonable and consistent.313 The Colorado Supreme Court considered one of these restrictions in Becker v. Arnfeld.314 Residents of the subdivision in Becker sued one of their neighbors for keeping 12 ducks, five geese, and four turkeys in a pen in their yard in violation of the covenants. The defendants did not deny the presence of the fowl, but succeeded in convincing the trial judge that they treated the birds as they treated their dog and cat and that the birds were, therefore, household pets within the meaning of the exception in the covenants. The state's highest court, however, noted that the covenant allowed "other household pets," but specified neither the number nor the kind of pets encompassed by that phrase. The court, therefore, considered the covenant to be ambiguous and sought the intent of the parties to the covenant by looking to the entire language of the covenant agreement. It found that the intent was to create a "desirable, pleasant residential area," and concluded it was not within the character of a planned residential community for a person to maintain a flock of assorted poultry. It interpreted the covenant to limit the number of pets, "whether dogs, cats, or ducks, to a number in keeping with reasonably quiet residential living and not rural or farm living." A goose, duck, or turkey could, under the covenants, be raised as a pet and be classified as a household pet, but where the nature and number of animals threatened the residential character of the neighborhood, that number of animals would be prohibited by the covenants.
One reason a common interest community will want to regulate pets is the possibility it will incur liability when residents harbor dangerous animals or fail to take proper precautions to prevent injuries. For example, a homeowners association was found liable for damages caused by a dog attack on its property.315 Rightly or wrongfully, pit bulls are often singled out as potentially vicious, and one commentary notes common interest communities have the right to control the presence of pit bulls on commonly owned property and can, therefore, be held liable for damage or injury caused by a pit bull on the property.316
§ 10.6.2—Companion or Service Animals — Reasonable Accommodation317
Despite restrictions to the contrary, unit owners may be allowed to keep "service animals" in their homes. The federal Fair Housing Act (FHA) makes it discriminatory and illegal to refuse reasonable accommodations to rules, policies, practices, or services if an accommodation may be necessary to afford equal opportunity to use and enjoy a dwelling.318 The CCIOA says that associations — notwithstanding any declaration provision, any bylaws, or any association rules and regulations to the contrary — may not prohibit "[r]easonable modifications to a unit or to common elements as necessary to afford a person with disabilities full use and enjoyment of the unit in accordance with" the federal Fair Housing Act of 1968 (FHA).319 The words "reasonable modifications to a unit or to common elements" strongly suggest the purpose of the CCIOA statute is to address structural modifications and not companion or service animals.320
Federal law may provide a basis for an exemption from a pet restriction. Initially, the leading case on the matter was from a federal district court in Hawaii.321 The association in that case had a no pet policy, but amended it, in an attempt to meet the federal law, by creating an exception for "assistance animals." One unit owner claimed to suffer from "major depression, recurrent type, and anxiety," and sought an exemption from the no pet policy. His request was supported by a medical opinion that "animal-assisted therapy" would benefit him. To prevail on a claim...
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