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Posted By WayneF2 on 06/15/2013 8:02 PM
Posted By MatthewW4 on 06/15/2013 7:09 PM
Posted By KevinK7 on 06/15/2013 6:12 PM
Yoi say these people cannot be grandfathered in. Did the developer know about these pets? If so and they did nothing, since being the almighty developer, their failure to act could be considered implied consent.
This is precisely the argument I would make if I was the guy with too many dogs. The developer/declarant sold me the home and knew I had 3 dogs. He made no objection. Therefore, the developer constructively waived the provisions of his very own restrictions.
The developer and the homeowners were parties directly involved in the sale of the home. The association was not a party to the sale. The parties to the sale constructively amended the terms by allowing 3 dogs instead of two. The developer himself put his own restrictions at risk by recording restrictions against more than two dogs and then allowing someone to move in with three. The developer created an ambiguity by recording a restriction that he himself did not enforce.
These people were not the first owners of that home. They have never had a direct relationship with the builder as the original homeowners did.
Also, these people moved in with zero dogs. Then bought 1. Then went back and bought 2 more a year later. So this is not a situation where you could have somehow stopped them prior to the purchase of their home.
It is true the developer has done little to nothing to enforce Covenants prior to the establishment of the HOA, as far as I am aware.
This is a sticky problem, but I think you should enforce the two pet clause. You probably won't be able to get any help from the city. The city may have different limits, typically 3 dogs and/or three cats.
In most cases, three large dogs is too much for a condo. The line that Brian was taking was silly. Perhaps you can say what harm does one more dog/cat make, can easily be two or three or four.
California law requires that condos allow at least one pet so allowing two is generous. I don't know about the laws in Illinois. I find Kevin's argument hard to prove since it would not probably be in writing that the developer knew the person had three dogs and generally, the developer isn't at liberty to re-write the CC&R for one particular person as amendments usually require petitioning the legislature (at least in California).
Our former condo pet regulations, there was a limit on the kinds of pets (dogs, cats, fish and birds). I'm sure something similar is the case with Brian's condo complex also in California. Livestock usually come under city/county regulations. A condo complex cannot do things that are contrary to the city/county/state law.
In our case, our neighbors had eight rabbits and two cats. Two of the rabbits and the two cats were added during the second year of their condo ownership. One reason you have to consider the limits is the damage. The rabbits were already damaging the shared walls after two years. After 10 it would be hard to imagine. This couple is likely at the beginning stages of animal hoarding. There is no real good reason for having eight rabbits, particularly if none of their are trained and they are already damaging property. The couple was involved with various rescue organizations and yet violating the practices of (at least three) those organizations. At this time, I believe they are no longer members of those three rescues, but I'm sure they have joined others if they haven't started their own rescue.
The argument made by that couple is that the animals were indoors and didn't bother anyone. I could hear the rabbits gnawing on the walls at night. As a volunteer, I've walked through some pretty scary homes where the animal hoarder was finally cited or evicted. The eviction took years. Further, many cities do not have legal limits on certain animals for single-family residences so if you don't enforce the two-pet limit and even the kind of pets, you could have a similar situation. According to city ordinances, there was no limit to the number of rabbits our neighbors could have.
There is an optimal number for animals and space. A yard that can look nice with two dogs might not look as well with four. The same holds true with shared common areas.
If you give an exception, then who gets exceptions and who are denied? Imagine the worst case scenario of three dogs per unit and the kind of chaos that would entail. Typically, three dog households are a bit harder to manage and keep quiet than two or four.
I don't know how many units you have, but some day, some time, you will likely have to deal with a hoarder. If it is an animal hoarder, then, an ounce of prevention...
In this case, the members obviously knew what the limit was, or should have. Ignorance isn't a valid defense. You can't grandfather in and there is not real reason to grant an exception without putting yourself in line to grant exceptions for everyone who so requests. Your membership had decided that two is a good limit.
In this case, fines should accrue daily and not monthly. I say hold a hearing. Make sure you complete all the elements required by your CC&R and state for the hearing. Should the person not conform, then levy a fine. If the member won't pay the fine, then the case would likely not require a lawyer for the HOA since it should only end up in small claims court.
In some cases, if the person/member is not in good standing, the member cannot vote or run for office. There's some wisdom in that. If that is not the case, then I would look into it.
Act quickly because in some states if a problem has been widely known, but not acted upon for a certain amount of time, then you relinquish the ability to prosecute.
For the record, I own two medium-sized dogs and have owned four dogs in the past, but always in a place where it was acceptable by city ordinances. I used to volunteer for a rescue organization and volunteer for the local humane society. I did a story and followed the trial of an animal hoarder for a class project during my master's program.
