Reader Questions - Animals

Hi,

Our HOA will not impose stricter fines (currently $100) for dog owners whose dogs leave waste and damage the property. They hired a person who goes around weekly that does some clean up and I have to pay for that out of my HOA fees! I am thinking of filing a small claims case and subpoenaing all accounting records for the last 10 years to get my pro rata share back or they must take action.

Thanks,

S.J., Murrieta

Dear S.J.,

Parking, pools and pets are the bane of the HOA manager’s (and also the HOA lawyer’s) existence. I would hope everyone would agree that leaving the “leavings” from one’s dog is not neighborly. Beyond passing a rule though, how far can the association go to make sure people do the right thing?

Certainly your association could consider a larger fine for repeat violations of any rule, including this one.

Your question illustrates why board service is not simple – does the board use its resources to more harshly enforce its rule, or to clean up from the un-neighborly folk who foul your community? No easy answers here.

Thanks,
Kelly

Mr. Richardson,

We moved into a small community in Fallbrook with an HOA and CC&Rs. We only pay a small road fee yearly, no other fees. We are all on 2+ acre properties. The CC&Rs state we cannot have livestock. I did 4-H growing up and would like my kids to have the same opportunity. Can CC&Rs limit 4-H/FFA projects? There is enough space/room to have the animals. The project animals would be on the property for less than 6 months. 4-H/FFA counts as an educational endeavor. Can CC&Rs limit educational opportunities?

Thank you,

P.B., Fallbrook

Dear P.B.,

CC&Rs are powerful, because once that document is recorded on the properties which comprise the association, they bind all owners as a contract – even if the owner did not read the CC&Rs before buying. Homebuyers should always carefully read the use restrictions first. The California Supreme Court ruled in a 1994 case involving cats in Culver City (Nahrstedt v. Lakeside Village Condominium Association) that courts would presume use restrictions in CC&Rs to be reasonable unless they violate public policy.

The Common Interest Development Act was amended a few years after the Narhstedt case to require associations to allow one “pet”. That section, Civil Code 4715, defines “pet” as any cat, dog, aquatic animal in aquarium, or domesticated bird. Animals such as horses or cows would not fall under that law, so the CC&Rs would control.

However, that doesn’t end the discussion, as CC&Rs are a contract between all of the owners in your small association, and can be amended if enough of the neighbors agree. Your CC&Rs should state the minimum vote to amend, and such amendments are by a written vote complying with Civil Code 5100-5145. Check with your neighbors first- if they don’t agree, there is no point in pursuing it further.

Amending CC&Rs is serious business- ask an HOA attorney to prepare the amendment. If it’s approved, make sure it’s recorded.

Best,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.