PROHIBITING PETS
QUESTION: Our CC&Rs prohibit pets. We are fearful that the new election law may affect our restriction.
ANSWER: Your fears are well founded. By requiring all associations to adopt election rules, the legislature inadvertently voided all pet prohibitions in California. Any governing documents modified after January 1, 2001 must allow pets.
No governing documents shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet within the common interest development . . . This section shall become operative on January 1, 2001, and shall . . . apply to governing documents entered into, amended, or otherwise modified on or after that date. HYPERLINK "http://davis-stirling.com/ds/laws/1360.5.htm" \t "main" Civ.Code HYPERLINK "http://davis-stirling.com/ds/laws/1360.5.htm" \t "main" '1360.5(a)&(e)
Election rules are part of an association's Rules & Regulations. HYPERLINK "http://davis-stirling.com/ds/laws/1357.120.htm" \t "main" Civ.Code '1357.120(a)(7) Rules & Regulations are defined as governing documents. HYPERLINK "http://davis-stirling.com/ds/laws/1360.5.htm" \t "main" Civ.Code '1360.5(d) Therefore adoption of election rules immediately voids pet prohibitions and allows owners to have birds, cats, dogs, and aquatic animals kept in aquariums. HYPERLINK "http://davis-stirling.com/ds/laws/1360.5.htm" \t "main" Civ.Code '1360.5(b)
Your board cannot preserve your pet restriction by refusing to adopt election rules since all associations "shall" adopt election rules. HYPERLINK "http://davis-stirling.com/ds/laws/1363.03.htm" \t "main" Civ.Code HYPERLINK "http://davis-stirling.com/ds/laws/1363.03.htm" \t "main" '1363.03(a) Therefore, the legislature has intentionally or unintentionally voided your pet restrictions.
RECOMMENDATION: Associations with pet prohibitions should amend their CC&Rs to limit the number, size and breeds of pets allowed. If they do not, owners can bring Pit Bulls, Dobermans, Rottweilers, etc. onto the property and there is nothing boards can do to stop it.
Moreover, if owners adopt pets before new restrictions are adopted, the pets are automatically grandfathered and associations cannot force their removal. HYPERLINK "http://davis-stirling.com/ds/laws/1360.5.htm" \t "main" Civ.Code '1360.5(c) Therefore, boards should move quickly to amend their governing documents.
QUESTION: Are you saying that adopting new election rules now, since it is after January 1, 2001, voids any pet restrictions even if those pet restrictions were included in our CC&Rs many years prior to 2001?
ANSWER: Yes (as to pet prohibitions).
QUESTION: Can our board adopt election rules without the adoption being considered a CC&R amendment?
ANSWER: There is no amendment involved. Just as racial restrictions are unenforceable, pet prohibitions become unenforceable by operation of law once the board adopts election rules.
QUESTION: Can we keep our pet prohibitions by treating the new election requirements as "procedures"?
ANSWER: The statute refers to them as election rules, not election procedures. If you treat them as procedures and you have a sudden influx of dogs, the association will likely end up in court when the board orders their removal. If the court disagrees with your interpretation of the statute, the new dog population in your association will be grandfathered. Your board should consult legal counsel.
QUESTION: Are there differences of opinion about the effect of the election laws on pet prohibitions?
ANSWER: Yes. There are some who believe that the changes in governing documents referred to by Civil Code 1360.5 means amendments related to pet restrictions only. However, the statute contains no such limitation. Until the matter is litigated (which seems likely) or the legislature steps in with emergency legislation to clarify this issue (which is unlikely) the matter will remain unresolved.
QUESTION: Assuming your interpretation is correct, does this invalidate all pet restrictions or only pet prohibitions?
ANSWER: It only invalidates pet prohibitions. Restrictions on the number and size of pets remain valid and enforceable.
QUESTION: We amended our CC&Rs in 2001, but not the pet prohibition. Instead, we wrote pet rules that restricted the size & number of pets (1 dog at 15 pounds). Since we have not amended the CC&Rs could someone still bring in a large dog?
ANSWER: Your rules are sufficient to keep out large dogs. Amending your CC&Rs will make your restriction stronger. The 15-pound limitation is good in that it virtually eliminates all dangerous breeds. In addition, it means that your board can adopt rules requiring owners to carry their dogs in the common areas, thus eliminating many potential problems such as entangling other owners in leashes, "ankle-biting", unwanted urine and feces in the common areas, etc.
RECOMMENDATION: If your documents prohibit pets and you are confident no one will challenge your prohibition, you can wait to see what the courts and legislature do with this problem. If you have dissidents who plan to immediately bring dogs onto the property, the board should consider adopting rules limiting pets to one dog or one cat no larger than 15 pounds.
In the alternative, if your association has the money and the stamina to handle the litigation, you could forego adopting any rules and be the test case that resolves the question, i.e., "Does the adoption of election rules invalidate pet prohibitions?"