HOA Homefront: Isn’t my service animal protected from HOA pet rules?

Who doesn’t love pets? Sometimes, it’s your neighbor!

According to the American Pet Products Association, an estimated 67% of American households have a pet. Presumably, that means about two-thirds of HOA residents have pets, and sometimes they create problems.

California law provides a unique (and limited) protection for pets. Civil Code Section 4715 says HOAs must allow a member to keep at least one pet and protects homeowners from having to remove existing pets because they are beyond a newly-imposed lower limit.

The interesting part is that “pets” are defined in this statute only as a “domesticated bird, cat, dog, aquatic animal in an aquarium, or other animal as agreed to between the association and the homeowner.” (4715(b))

Consider all the common pets that are not protected by this law, including rabbits, mice, reptiles, and hamsters, to name a few. (I have been advocating for years that hamster owners rise up and oppose this law… “Hamster Liberation Front,” anyone?)

Also, the law allows HOAs to limit aquatic animals to one. I have not yet heard of a board counting fish to make sure someone does not violate the limit and (until this law was enacted) never thought the number of fish was important!

Fair Housing laws allow for assistance animals to help persons with their disabilities. This refers to trained “service animals” or untrained “support animals.” The law does not consider such animals to be “pets” and bars any requirement of deposits or insurance from a resident with an assistance animal.

The law is extremely vague on what species of animal may be assistive. The U.S. Housing and Urban Development Department announced guidelines Jan. 28, 2020, which allow housing providers more latitude to deny animals not “commonly kept in households” and requires a greater burden upon the disabled to show why a “unique” animal is necessary due to their disability.

California’s Fair Employment and Housing Regulations have not yet been modified to conform to this federal guidance, but hopefully, the Fair Employment and Housing Council will bring this about soon.

Associations can take action to respond to nuisances caused by the pet or assistance animal and should make it clear to all animal owners that they will be held responsible for problems caused by their animal without any showing of negligence. If the CC&Rs or rules of an association do not make this clear, associations may want to amend to include clarification.

Unfortunately, from time to time I encounter residents who feel their animal’s status as a support animal exempts them from any enforcement actions by the HOA. This is incorrect. Owners of support animals should be held accountable the same as pet owners for problems the animal causes – whether damage to property, menacing other residents or noise or odor issues.

Pets are not allowed in swimming pools per state Health and Safety regulations, but since support animals are not considered “pets,” they are allowed in swimming pool areas. However, the HOA can and should insist that the support animal always be kept under the direct control of the owner, and not allowed to roam around the pool area or be left tethered to a chair.

Pets and support animals can bring much happiness to their owners, but uncontrolled animals can bring unhappiness to neighbors. You AND your animals should be good neighbors.

Kelly G. Richardson CCAL is Partner of Richardson Ober DeNichilo LLP, a California law firm known for community association advice. Send potential column questions to Kelly@rodllp.com.

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