Our HOA recently voted to update our CC&Rs. One section prohibits ownership of numerous breeds of dogs the board considers dangerous. Since California law (Food and Agri. Code 31683) outlaws dog breed discrimination by counties and cities, we are the only HOA in the region that bans ownership of certain dogs. Isn’t it illegal under Davis-Stirling to violate state law?
The Food and Agricultural Code section you mention applies to ordinances adopted by cities and counties but not restrictions passed by common-interest developments. So, when the association members voted to approve an amendment to the CC&Rs prohibiting certain dog breeds, the amendment would not violate that specific law.
However, the Davis-Stirling Act does protect the right to have a “pet,” which per Civil Code 4715 includes dogs. Under that statute, an association must allow an owner to keep one pet on the property. The statute defines “pet” as including ”any…dog,” so if one takes the statute as written, it is the homeowner who chooses what breed of dog to have, not the HOA.
How can HOAs handle large, aggressive service dogs that otherwise would be barred by CC&Rs? How can HOAs accommodate residents’ allergies or legitimate fears?
The Fair Housing Act requires associations to provide reasonable accommodations to residents with disabilities, and one of the most common accommodations is allowing a service dog or support animal. However, if the dog creates a nuisance by damaging property or menacing other residents, that accommodation may become unreasonable.
The current draft of the proposed Housing Regulations specifically states that action denying a requested accommodation cannot be based on a suspected or feared problem but must respond to an actual problem. The resident with the dog may be required to stay a reasonable distance away from residents who have documented dog allergies.
Service animals are specially trained and would not normally be expected to frighten residents, but support animals (often called “comfort animals”) are not trained. Associations should be reasonable in accommodating such animals, but reasonableness has its limits, and the resident with the animal does not have a “blank check” to cause problems.
I had heard there was a new law regarding something about no more restrictions on the number of dogs/pets. Is that true, and if so, is it just for ADA situations?
Associations must allow residents to have one “pet,” as per Civil 4715, and that includes “any” dog. There are many who argue a resident may have an additional dog beyond the HOA’s limit if that dog is a support animal, and this argument has not yet been addressed by the appellate courts.
The safe approach is to allow the requesting resident a support dog beyond the pet limit until guidance comes from either the courts or the Department of Fair Employment and Housing.
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Kelly G. Richardson is a senior partner with Richardson | Ober law firm, serving California common-interest communities. He is a CAI past president and a fellow in CAI's College of Community Association Lawyers (CCAL).