Few restrictions generate as much conflict in covenant-controlled communities than those on pets. Here is an overview of the basic legal rights in this area.
Much to the chagrin of pet owners, pet restrictions are generally enforceable. This is certainly the case where pet restrictions are included in the original community documents, but it is also the case where pet restrictions are adopted later on after the association encounters problems. Courts are typically receptive to pet restrictions based on potentially offensive odors, noise, possible health hazards, and cleanup and maintenance problems. A property owner or tenant should not rely on the fact that a given project allows pets (or does not allow pets) because pet restrictions, like practically all other association restrictions, are subject to change.
Notwithstanding the general enforceability of pet restrictions, associations should recognize the practical difficulties where transitioning from a project that allows pets to one that restricts pets. In this situation, pet owners may fight the restrictions undeterred by poor legal prospects. A solution may be to “phase out” pets over time.
Associations should use caution if they impose a restriction under which the board may approve certain pets. Once the association starts making discretionary decisions like this, courts will generally require that those decisions be made reasonably and in good faith. Thus, a discretionary policy is susceptible to challenge in ways that a strict “no pets” policy is not.
Another tricky area is vague restrictions that are open to interpretation. In these cases, the courts will often look beyond the language of the covenant to determine its intent. For example, one Colorado case involved an owner’s claim that 12 ducks, five geese and four turkeys were “household pets” allowed by the covenants. After the case was appealed all the way to the Colorado Supreme Court, it was decided that the intent of the covenants was to maintain a certain neighborhood character and that the “flock of assorted poultry” violated this character even if a smaller number of birds could be considered household pets. This conflict could have been avoided by clearer covenant language.
Despite restrictions to the contrary, owners may be able to keep “service animals” in their homes under the federal Fair Housing Act (FHA), which makes it illegal for associations to refuse reasonable accommodations to rules if necessary to afford equal opportunity to use and enjoy a dwelling. It’s pretty clear that a blind person should be allowed to keep a highly trained “seeing eye” dog, but what about an owner who claims to suffer from emotional distress that would be benefitted by keeping an animal? This type of claim is potentially viable; however, the owner would have a heavy burden in court. For one, the owner would have to show that he or she was “handicapped” within the meaning of the FHA, which would require the owner to present expensive medical testimony. For another, there is precedent that the animal must have some sort of special training to help the owner with the handicap, like a seeing eye dog, rather than the animal being a mere pet. This can be difficult to prove where the handicap is mental in nature. Finally, the owner would not have a claim under the FHA unless the owner applied to the association for approval and was denied reasonable accommodation. Thus, associations can (and should) require owners to present detailed information in support of FHA requests before they decide whether to accommodate the request.
Associations that impose or enforce pet restrictions are generally on firm legal ground. However, they should proceed cautiously because associations and pet owners often find themselves fighting like dogs and cats.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.