- Community Associations
One of the most serious and annoying problems confronting the board of directors at a condominium or townhome association is dealing with pet violations.
Subject to the restrictions imposed by local municipalities, keeping a pet in one’s home within a common interest community is generally allowed unless specifically prohibited or limited by a restrictive covenant. Such covenants are often found in the declaration of condominium or townhome associations. Whether or not the owners actually know of the covenant does not matter. A properly recorded declaration is constructive notice to all owners and an owner takes title to their unit subject to these restrictions.
Adding or Eliminating Restrictive Covenants. The members of an association can either add a “no pet” clause or remove an existing restriction through an amendment to the declaration. If a declaration expressly or implicitly allows pets, then this is a vested property right which can only be eliminated by a valid amendment. A modification of the rules and regulations is simply not adequate.
In 1978, one of the first cases on the subject upheld the principal that a vested property right, such as the right to own and maintain a pet, may not be retroactively abolished by a mere rule change. (Winston Towers 200 Assn. Inc. v. Saverio, Fla. 3d Dist. Ct. and Movighes v. Playa Del Sol Assn., Inc., also a Florida third District case from 1978.) These cases also established the principal of “grandfather” clauses for pet amendments. A “grandfather” clause requires that any change of an existing condition that materially affects a vested property right, must allow the condition to continue until it expires by either a change of condition of attrition (e.g., the death of a pet).
Each declaration and/or by-laws sets forth the requirements for amendments to be implemented. For some associations, a meeting may not be necessary if the declaration provides for approval by a certain percentage of the membership in writing on an instrument setting forth the proposed terms.
However, any amendment which does restrict the ability of an owner to keep pets must be sensitive to the needs of the pet owners at the time the amendment is approved. Conversely, on the rare occasion an association wishes to proceed with an amendment which liberalizes pet restrictions, it should take into consideration the needs of those members who purchased their units in reliance on these restrictions. Neither of these circumstances is easy to handle and no solution will be completely satisfactory.
“Grandfathering” or “depreciation” are concepts which must be used with pet ownership provisions. Pets which are currently on the premises are allowed to remain with their owners but cannot be replaced. When the provisions are amended to become less restrictive, the effective date should be set far enough in the future so that adversely affected owners can attempt to sell their units and minimize their hardship.
However, as in the case of any amendment, when a person buys a unit in a common interest community, they should be aware that the “power to amend” can change the quality of life at any time.
Enforcement of Restrictive Covenants. Once a restrictive covenant is validly in place, the regulation of pets can be accomplished by means of effective, thorough rules and regulations enforcement procedures. An accused resident must be given proper notice of an alleged violation and an opportunity to be heard as to the allegations before any punitive measures can be taken. If the owner does not take advantage of an opportunity to present evidence about the incident or defend their point of view, the hearing should be held in any event. This is a basic principal of “due process of law” found in the Unites States and State Constitutions. (Illinois Condominium Property Act, Ch. 30 Ill. Rev’d. Stat. Sec. 318.4(e) etseq.) (Also see “Recommended Procedures for Fines Under the Illinois Condominium Property Act” – Real Estate News, July 16, 1984 and ” Community Associations and the Power to Levy Fines” – Illinois State Bar Journal, 6/83, written by Jordan I. Shifrin.)
Upon hearing the “evidence” at a closed session, the board or its hearing committee must make its recommendations to the board at an open meeting for final determination. If the determination is that a violation has occurred, the board can either reverse or approve the recommendation and determine an appropriate remedy. Any resident who has been found to have violated a rule must be given written notice of the sanction 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 the necessary collection or compliance actions available to the association against the unit owner or tenant, where applicable, including the payment of all damages, costs and attorney’s fees.
Rules governing pets should define the term “pet” specifically and spell out those types of animals which are not included. Size and behavioral restrictions should be set forth clearly. Remedies and procedures for any violation should be distinct and straight forward.
Notice and hearing procedures should also all 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 stray from any explicit provisions contained in the declaration or by-laws and the rules and regulations.
Local Government Enforcement. Once a hearing has been conducted and a finding has been rendered, or when there is a wide-spread problem that cannot be punished because of lack of proof, the local authorities should be consulted.
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 force a pet violator to suffer criminal prosecution with the cooperation of the local policing authorities. This is an effective remedy without the association expending legal fees.
Conclusion. 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.
Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.
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