Sacramento Knows What We Need

Do you have a pet or not? You may think you do, but California law defines the term “pet,” at least for common interest development (CID) owners. Civil Code section 1360.5 states that an association may not completely ban “pets” from a CID, and must allow one “pet.” At subsection (b), it defines “pet” as: “any domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed to between the association and the homeowner.” Since becoming law in 2001, it has led to some very interesting questions.

The law was adopted in part as a reaction to the landmark Narhstadt v. Lakeside Village case, which upheld an association’s CC&Rs which completely banned pets.

If after January 1, 2001, an association has created or changed any CC&R’s, bylaws, rules or articles of incorporation, the law applies. To hang on to a longstanding pet ban, many associations have avoided making any changes to their governing documents. This is now problematic, because the law has since required a number of new rules to be adopted (elections, dispute resolution, etc.). This strategy, if it ever was a good idea, is not one today.

Another area of dispute relates to whether an association can prohibit certain dogs. Some attorneys say an association may ban, for example, Rottweilers, or a certain weight of dog under the statute’s allowance of “reasonable rules” concerning pets. However, the law says a “pet” is “any domesticated bird, cat, dog…”. If the word “any” means what it says, then a Doberman is as protected as a Chihuahua. As a dog owner, I know my small pooches can be as much a nuisance as large ones, so banning larger breeds is also unnecessary. Besides, which director will be willing to weigh a neighbor’s Fido when he gets a little pudgy?

What pets are not protected in CID’s? Note the various normal (and quiet) household pets which are excluded: Rabbits, hamsters, rats, mice, reptiles, gerbils, and guinea pigs are all not “pets” under the Davis-Stirling Act. If you are one of those aggressive directors or managers wishing to strictly enforce your pet restriction under the law, begin your search immediately. If one of those dastardly hamsters or even a subversive rabbit is discovered, get your lawyers busy. As for me, I continue my efforts to build the Hamster Liberation Front, to gain them legislative recognition before it is too late.

The law says that an association cannot prevent owners from keeping one pet. So, the pet enforcement committee will surely want to watch out for homeowners who dare to have two goldfish in the bowl, let alone the maniacs who have even more. Another habit of the scofflaw is to have a cat as well as a canary (yes, Granny can have Tweetie Bird or Sylvester, but not both). Under the law, only one pet is protected.

This law has been on the books since 2001. Is it strictly enforced? I suspect most do not.

In the continuing legislative trend of expanding CID laws, well-intentioned efforts sometimes lead to interesting results. The wild stories in the news about CID’s usually come from boards, members, managers and lawyers who forgot the most important rule of all – Reasonableness — a commodity which rarely comes from legislative enactment.

Have we gone so far that there is no room for simply banning “unreasonable” behavior? I hope not.

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®.