Muzzled Dog Owner Questions No-Pet Policy

QUESTION: A new resident who owns a dog has moved into our 24-unit condominium complex. When we board members spoke with her to inform her of our condominium’s pet restrictions, we met with strong opposition.

Our declaration of covenants, conditions and restriction (CC&Rs;) clearly state that cats and dogs are not allowed in our building. Through the years, we have enforced the restriction diligently.

The new owner says that her real estate agent told her that a new law had been passed that makes enforcement of pet restrictions illegal. The real estate agent is not able to give us any specific information about a change in the law and, therefore, we do not believe her argument.

Are pet restrictions enforceable? If so, what is our association’s next step? What is the buyer’s next step if she wants to file a complaint against the real estate agent?

ANSWER: Yes, your pet restrictions are enforceable unless the animal is a seeing-eye dog or is used for some other type of assistance for a disabled person.

It is unfortunate that the real estate agent provided incorrect information to the buyer. The buyer may be upset with the condominium association’s board members; however, her real adversary is the agent who gave her the incorrect information.

The agent may be confused because of the well-publicized lawsuit, Nahrstedt vs. Lakeside Village Condominium Assn. The case has now been ruled upon in the California Supreme Court. If the agent was relying upon the appellate court decision in this case, she needs to be aware of the final decision on Sept. 2, 1994.

The owner of three cats, Ms. Nahrstedt, moved into a condominium unit at Lakeside Village in Culver City. When the association’s board of directors attempted to enforce the CC&Rs;’ prohibition of cats, Nahrstedt filed a lawsuit. She felt that she should be allowed to keep her cats since they stayed inside her condo unit and did not create any noise or other nuisance. At the Superior Court level, the case was dismissed. The court felt that the association’s pet restriction was enforceable and refused to hear the case.

Then, Nahrstedt filed an appeal. The Court of Appeal determined that each challenge to the association’s CC&Rs; should be analyzed on a case-by-case basis by looking at the impact of the governing document’s provisions on the individual owner. The appellate court ruled that Nahrstedt could keep her cats.

However, the appellate court’s decision contained an ominous threat to the enforcement of many of the provisions in every association’s documents throughout the state. Lakeside Village appealed the case to the Supreme Court, and the outcome was anxiously awaited.

During the long wait, many of us who manage and work with community associations were concerned about the number of lawsuits that might result from owners questioning the legality of any provision in the governing documents that the owners found objectionable. There were many discussions at homeowner association meetings all around the state regarding the apparent failure of the court to recognize the rights of the other owners who had, in some cases, given up their pets in order to comply with the association’s restriction. Didn’t these owners have the right to demand that other owners abide by the same restrictions?

Pet problems are often the topic of discussion at association board meetings. A pet that is unconditionally moved by its owner is sometimes a serious aggravation for the rest of the association’s residents. Pets often create undesirable noise, odors and clean-up problems. If the owner is negligent, the result can be unsanitary conditions in and around the property.

On the other side of any debate about pet restrictions are those who are firmly convinced that pets are therapeutic and they are appalled that anyone would try to restrict them. The heated debates will probably continue in spite of the final court decision.

Those of us who recommend enforcement of pet restrictions are not necessarily pet haters. We are simply aware of the importance of protecting the integrity of the association’s legal documents. If an association is not going to enforce pet restrictions, then the restriction should be removed by formally amending the CC&Rs; by a vote of the entire membership.

On Sept. 2 the Supreme Court handed down its ruling. The court upheld the association’s pet restrictions. Nahrstedt was told that her cats were not entitled to reside at Lakeside Village. This is an important, precedent-setting decision. In my opinion, it was a great victory for enforcement of the legal documents.

The Nahrstedt case reinforces the legal validity and the strength of the declarations (CC&Rs;) in California community associations. New owners sometimes purchase their condominium units without understanding that the declaration is a binding document. When they are informed of the declaration’s provisions, they sometimes decide to ignore them, rather than live harmoniously with their fellow association members. We now have the Nahrstedt case to educate the general public about the importance of every community association’s legal documents.

The law firm of Wilner, Kleir & Siegel represented Lakeside Village Condominium Assn. in the lawsuit. Laura J. Smoke, one of the attorneys who was instrumental in the association’s victory, said, “The Supreme Court set forth a clear and sensible standard for CC&R; enforcement: CC&Rs; are enforceable if they are rationally related to a legitimate purpose of the association. In determining whether a restriction is enforceable, the court will analyze the restriction as it affects the community as a whole. No longer will boards of directors have to evaluate, on a case-by-case basis, whether a restriction is unreasonable as it applies to a specific homeowner. Instead, unless the restriction is unreasonable on its face, i.e., it is arbitrary or violates public policy, the restriction will be enforceable.”

What can your association do about the new owner in your association? Perhaps by showing this information to her, you will be able to persuade her to comply with the pet restriction. Since your association has always enforced the restriction, you should not have a problem enforcing it now. Consult your attorney regarding your alternatives.

If the owner refuses to comply with the pet restriction, your association attorney could write a letter to her informing her that her lack of compliance is a serious matter. She should also be informed that she will be charged for the legal expenses. In California and many other states, the violating owner can be held responsible for the payment of reasonable legal expenses incurred by the association to enforce the CC&Rs.;

The new buyer who was misled by the real estate agent should talk with the broker of the real estate agency and also consult a real estate attorney.

If the agent intentionally defrauded the buyer in order to sell the unit, the agent has committed an offense that could lead to loss of her license or a lawsuit.

The association and the pet owner can file a complaint about the agent’s misrepresentation with the local Board of Realtors, a voluntary self-policing trade organization, and the Department of Real Estate, which is the state’s agency that oversees the licensing of real estate brokers and agents.