Publications
All Creatures Great and Small
Published February 26, 2005 as
Restricting pets can become a prickly issue
“I don’t need no beast of burden
I need no fussing
I need no nursing
Never, never, never, never, never, never, never . . .be”
Rolling Stones
As a dog owner, this is always a painful topic to address. I am an unwilling co-conspirator with hundreds of associations in their quest to bar the canine species from association living.
However, at some point in time a board of directors is going to be confronted with a careless pet owner and have to enforce association policy. In many instances, associations attack this problem by barring dogs altogether.
Subject to the restrictions imposed by local ordinance, keeping a pet is generally allowed unless specifically prohibited or limited by the declaration. It is important to have a policy, and just as important for all residents to know what that policy is.
A board of directors can either add a "no pet" provision or remove an existing restriction through an amendment to the declaration. If a declaration expressly or implicitly allows pets, then this is considered a vested property right which should be eliminated by an amendment. A modification of the rules and regulations is often not adequate.
However, the Illinois Appellate Court (175 East Delaware Condominium Association vs. Hinjosa, 287 Ill.App.3d 886, 679 N.E.2d 407, 223 Ill.Dec. 222, 1997) has held that a board could eliminate dogs with a rule change! Though this approach may appear to be easier initially, it can actually cause more problems and possible litigation and the association must meet a number of tests. That is why an amendment to the Declaration is the preferred method. An amendment can only be revoked by a subsequent amendment.
Pet issues are very high on the emotional scale because many people are as attached to their pets as to their children. Until the 175 East Delaware case, most court cases followed the principal of "grandfathering-type" pet amendments, where the owner can keep a pet until it dies or the unit is sold. Each declaration and/or by-laws should set forth the requirements for any amendments to be adopted.
For some associations, a meeting may be necessary to adopt an amendment, or sometimes it can merely be a written instrument approved by a certain percentage of the members without an owners meeting.
Any amendment which restricts the ability of an owner to keep pets must be sensitive to the needs of the existing pet owners at the time the amendment is approved. On the rare occasion a board wishes to proceed with an amendment which liberalizes pet restrictions, it should also take into consideration the needs of those non-pet owners who purchased their units in reliance on those restrictions. The needs of either of these groups is easy to ignore and no solution will be completely satisfactory to all owners.
In the case of any amendment, when a person buys a unit in a condominium, they should be aware that the "power to amend" can change the quality of life at any time. Not just with regard to pets, but leasing, parking and so on.
Once a pet restriction has been adopted, the regulation of pets may be accomplished by consistently utilizing the enforcement procedures. An accused resident must be given proper notice of any violation and a hearing before any punitive measures are taken. If the owner does not take advantage of an opportunity to present supporting evidence, a hearing should determine the outcome of the complaint. (Hearings are always interesting because the primary evidence is usually photos of dog waste.)
This is a basic principal of "due process of law" found in the United States and State Constitutions, as well as the Illinois Condominium Property Act, Sec. 18.4(e) et seq.)
Upon hearing all of the "evidence," the board or its committee must make its recommendations to the board at an open meeting for final determination. If the determination is made that a violation has occurred, the board can enforce the appropriate remedy. Any resident who has been found to have violated a rule must be given written notice and should be given a reasonable time to comply (e.g., payment of a fine or repair assessment, removal of the pet or future compliance with the rule). Failure to do so would trigger legal proceedings. Where applicable, the payment of all damages, costs and attorney's fees would be assessed.
A less controversial approach to controlling pets is for a board to adopt reasonable rules and regulations with strong enforcement procedures. Any rules adopted governing pets should define the term "pet" specifically and spell out those types of animals which are not included (i.e., exotic animals, snakes, tarantulas, pot-bellied pigs, etc.). Size and behavioral restrictions should also be set forth clearly. Remedies and procedures for any violation should be distinct and straight forward.
Some associations, instead of eliminating pets altogether, seek alternative remedies such as a “pet security deposit” or hiring a doggie cleanup service and assess the cost back to all dog owners.
Notice and hearing procedures must be spelled out in detail in the association rules. A board can jeopardize its ability to enforce rules by failing to apply them consistently and uniformly. Established policy and procedures must not contradict any explicit provisions contained in the declaration or by-laws and the rules and regulations. More and more, the courts are looking at the rules and regulations as having greater weight than generalized provisions of the declarations.
Before a hearing has been conducted and a finding has been rendered, an investigation should be conducted to determine if any local codes or ordinances are being violated. Most municipalities, or the county in unincorporated areas, have health and zoning regulations pertaining to animal control. By filing a complaint and appearing in court, the association can cause the notorious pet violator to be prosecuted with the cooperation of the local policing authorities. This is an effective remedy without the association expending legal fees.
The most effective way of dealing with irresponsible pet owners is to have tough rules and regulations and strict enforcement procedures. This will allow the association to solve a constant and annoying problem, yet deal with its membership in a fair and conscientious fashion. If all else fails, an amendment barring certain types of pets may be the only alternative. However, the members of the community must police themselves.