Discussion Forum Follow-Up: Can Your . . .
Discussion Forum Follow-Up: Can Your HOA Restrict Animals from Common Areas?
A reader asks: "Is it permissible for HOAs to restrict the common areas where dogs are allowed? I've seen some case law about this, which tends to allow owners access to all common areas, but what about dogs? Wouldn't it be unreasonable to permit dogs, but then not allow them in common access paths, so that they're effectively not allowed?"
Here's an answer.
Some Pet Restrictions OK, But Not All
Generally, HOAs can limit dogs to certain parts of the property, but too-onerous restrictions can violate owners' rights.
"Restrictions in common areas for pets aren't uncommon at all," says Bill Worrall, vice president of The Continental Group, which is based in Hollywood, Fla., and manages 1,300 condominium and homeowner associations totaling 310,000 residential units. "Most condos have specific ingress and egress for owners with pets to protect common areas--but guide dogs for the blind are always excluded from those restrictions. In HOAs, pet restrictions are less prevalent. But in either scenario, you need to have the proper facilities for pet-friendly facilities. You need to give your residents a fighting chance to live in peace, and if the facilities aren't stocked with basic materials like waste bags and scoops, you may not be meeting that requirement."
It's also common and permissible for HOAs to require that pets be photographed when they're first brought onto the property. "That's because of weight and size restrictions," says Worrall. "If you bring a poodle in, and two years later it turns into a Doberman, the association has some way to enforce its rules."
Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va., agrees that certain restrictions are common and enforceable. "What we typically see is that there are certain common areas that animals are restricted from, not in all HOAs, but in particularly dense or condo properties. You normally wouldn't want pets in the pool area. Or you can require that dogs be taken only through a certain entrance for aesthetic or noise reasons or to ensure the comfort of those who don't love animals. But there's also typically a designated dog walk or run area. In larger master-planned communities, there are typically leash laws or rules the association adopts requiring dogs to be on a leash or under an owner's control."
However, all pet restrictions must be reasonable. "We see a lot of law on the owners' use and enjoyment of their unit," explains White. "For example, in traditional association documents, owners have an easement for the use of common elements or areas reserved to their tenants, guests, and invitees. Any time you try to restrict that use, most courts will say that rule has to have some reasonable objective. Even if you have onerous language in your documents saying the board has the sole and absolute discretion to create rules or restrictions, the courts will hold the association to a reasonability standard.
"So if your rules are so restrictive that owners essentially can't take their pet outside their unit, you're getting into a reasonability issue," adds White. "If you don't have any places where pets can go, or if an HOA says no dogs are permitted at any time on association areas or in common areas, it's almost a de facto restriction on the owners' unit. The HOA has effectively come up with a scenario where it's trying to restrict what the owners can do inside their unit."