![]() ![]() ![]() When adopting new pet restrictions, associations are well-advised to include a clause expressly exempting members from keeping non-compliant pets before the effective date of the amendment.Īlong with promoting fairness to members, exemption clauses also protect the board by preempting future waiver claims based on non-enforcement against exempted residents. Both theories are rooted in the principle that a person should not be punished for engaging in an act that was not against the rules when it occurred. The legal theory of “grandfathering” is similar to the ban on ex post facto laws included in Article I of the U.S. The statute disallows enforcement of a newly-enacted pet restriction against an owner whose pet was previously compliant. Community Housing Improvement System & Planning Assn., 171 Cal.App.4th 1356, 1380 (2009).Ĭalifornia’s legislature codified an exception concerning HOA pet restrictions at Cal. Then, if the restriction is later challenged, a judge might decide that, based upon the prior non-enforcement, the association has abandoned its right to enforce the restriction. Moreover, if the board’s enforcement is arbitrary or capricious, the board is implicitly saying that the purpose is not all that important. The idea is that every covenant must serve a purpose. If a board enforces a restriction sporadically – or gives board-members or their friends a pass – the association risks waiving the right to enforce the restriction in the future. With any restriction or covenant, including pet restrictions, association boards should strive for uniform and even enforcement. If the member refuses to comply with a court order, the judge can direct the sheriff to enforce it and hold the member in contempt, which can result in a fine or even jail time. With pet restrictions, this usually means an order directing the member to remove the animal from the development. If necessary, the board can file a civil lawsuit requesting injunctive relief against the nonconforming member. Associations can still adopt restrictions on breed, size, number, and other reasonable criteria, but, for the most part, homeowners who buy a home in a California development, have a legal right to own at least one pet. Code §4715, which establishes the right of all members to keep at least one pet. Interestingly, though, the California legislature did not like the decision. Lakeside Village , 8 Cal.4th 361 (1994).įor the most part, state courts throughout the country agree with the California court’s Nahrstedt decision and enforce blanket pet prohibitions as long as validly adopted. In sustaining a total prohibition on all pets, the California Supreme Court held that as long as a restriction does not violate public policy, is not “wholly arbitrary,” and does not impose a burden on members greatly outweighing the projected benefits it should be enforced. These more stringent restrictions are frequently challenged and, for the most part, have been upheld in court. However, due to the nature of certain communities, some associations (most commonly in condominiums) have adopted blanket prohibitions on all pets. ![]()
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