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Dogs & Renters

Started by ChrisC16 • 32 replies • 2602 views

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ChrisC16 (Arizona)
Posts: 9
Posted:
Currently our community allows for unrestricted pet ownership. I have put on the agenda for next meeting a change to the CCR to allow dog ownership for owner occupied units only, effectively prohibiting renter occupied units from having a dog (of any breed). This is due to renters inability to clean up after their animals on a daily basis.

I'm new to HOA (this is my first HOA covered property). What should I expect in terms of next steps? A vote?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The HOA can NOT interfere with the owners rental agreements. They are a 3rd party. If you do not want your renter to have pets, you write it into your rental agreement. Just like the renter needs to obey HOA rules.
Former HOA President
ChrisC16 (Arizona)
Posts: 9
Posted:
The change would not affect current rental agreements. It would go into affect on renewals and for new leases going forward. All rental agreements state that the tenant must obey the HOA rules. This would be one of them.
JeanneK3 (Maryland)
Posts: 562
Posted:
Hello:
To effect this change, many associations mandate a uniform rental agreement which the owner, renter and association sign. This agreement could state that the renter is not allowed to have a dog. This new lease would be applicable to future renters or when a new lease is signed.

However, I question that your poop problem is just renters. Usually its everyone.
Jeanne
MelissaP1 (Alabama)
Posts: 13,836
Posted:
No all rental agreements do NOT say that. It has to be added by the owner who is renting. Off the shelf agreements do not have this. Again the HOa can NOT put restrictions on renters. They can on owners.
Former HOA President
CarolR11 (Colorado)
Posts: 2,563
Posted:
Out of curiosity, Chris: How many homes/units are in your HOA? Do you have a sense of how many or what % are renter-occupied? Are you saying that residents currently may have as many dogs as they wish?

ChrisC16 (Arizona)
Posts: 9
Posted:
I don't think a ban on all dogs would pass, but restricting renters has a chance. I personally have only observed this problem with renters.
ChrisC16 (Arizona)
Posts: 9
Posted:
@Carol. When I say unlimited, I mean HOA doesn't speak to it. I believe the city limit is 3 dogs per household.
CarolR11 (Colorado)
Posts: 2,563
Posted:
OH, I forgot to mention this. Your governing documents probably say somewhere that owners are responsible for the conduct of their lessees, guests, vendors, etc. This means that your Board of Directors or property mgr. can send warning letters to the property owners whose renters aren't picking up after their dogs.

If the situation doesn't cease, the property owner can be called to a hearing in front of the board and fined. Both the rule against dogs using the common areas to do their business and the possible fines must be spelled out in your governing documents.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
You need to research the laws in restricting renters in HOA. Unless the HOA actually owns the property it can not restrict renters. You can make all the rules in the world you want in your docs but your HOA could be sued for it. Only 1 state has any kind of rental restrictions enforceable, that is CA. It just went into effect in 2012. Otherwise the HOA is a 3rd party and can NOT enforce their rules onto non members which are renters.
Former HOA President
ChrisC16 (Arizona)
Posts: 9
Posted:
I do know they send letters. I don't know if financial penalties have been used. I have also asked the renters directly to be more careful about cleaning up after the dogs. They just blame each other (renters blame other renters).

I have a side idea. Each unit has a gated patio, which is HOA owned but the occupant has private access to the patio. I wonder if we can change that rule to prohibit housing animals on patios (vast majority of renters keep their dogs on the patio 24/7).
GlenL (Ohio)
Posts: 5,491
Posted:
Melissa when did you get your JD? Associations can and have put rental restrictions in place as long as you do it legally and don't violate civil rights.
In case you missed it the CA law was actually designed to limit rental restrictions and was heavily lobbied for by CA realtors. I btw am not an attorney nor am I offering legal advice.
Studies show that 5 out of 4 people have problems with fractions
PeterD3 (Florida)
Posts: 708
Posted:
"Unless the HOA actually owns the property it can not restrict renters."

BS.

[In Fla.] Deed restricted comunities can regulate just about anything with proper recorded documents.
PeterD3 (Florida)
Posts: 708
Posted:
"According to MSN Real Estate, an estimated 40 percent of communities governed by HOAs impose restrictions to keep homeowners from becoming landlords."

http://budgeting.thenest.com/can-subdivision-prevent-leasing-home-22789.html
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Chris

An association must tread lightly when it comes to renters. As one poster said, the association does not own the unit.

Usually a "back door" approach (limit pets) sounds good to the anti-rental faction (like myself actually) but they rarely stand up to a legal challenge. You want "back door" rental limits? All well and fine but just be sure you are on sound legal (not play lawyer) footing.

I say rental restrictions probably can be done but they have to be done legally.

ChrisC16 (Arizona)
Posts: 9
Posted:
I'm going to put the question to the board in March. The property manager has access to an attorney. I'll let you know what the outcome is. Thanks for the quick responses.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By ChrisC16 on 02/25/2014 10:17 AM

This is due to renters inability to clean up after their animals on a daily basis.

I don't think that this is an issue exclusively to renters.

I also think that such a plan may be more of a retaliatory action against one or two renters.

Rather than trying to change the governing documents for this restriction, why not simply adopt and/or enforce a rule the pet owners must clean up after their pets or face a charge. Once the landlord (member) is hit with multiple charges because their renter failed to clean up after their pet, the issue will correct itself.

Quote:
Posted By ChrisC16 on 02/25/2014 10:17 AM

I'm new to HOA (this is my first HOA covered property). What should I expect in terms of next steps? A vote?

Chris, the Board should seek legal advice as to what document will need to be amended and if the language you propose will withstand a legal challenge. Based on the legal advice, the Board should make changes to the proposal and then amend the specific document based on the procedure outlined in that document and/or applicable laws. Typically this requires that the draft proposal be published, notice requirements met for a meeting, a meeting held and vote taken.

ChrisC16 (Arizona)
Posts: 9
Posted:
Tim, this does smack of a "a few ruined it for everyone". I realize that in the next couple years I could very well be renting out my unit too. However, I do not want to become this policeman who watches, documents, photographs, and "educates" every new renter that comes along.
I think just putting it to vote is important in raising awareness of the issue. Even if it doesn't pass, it may lead into an alternate solution such are more signage or steeper fines.
JoK2 (California)
Posts: 198
Posted:
If there have been enough complaints about leaving their crap behind, then go to their pocketbooks and tell them that you will have to hire a professional pooper scooper and the entire HOA will have to pay for it.

We were able to stop the littering at the bus stop this way. We called a few maintenance companies and got a proposal together and told the HOA that unless it stopped, this would be another bill added. Haven't seen any trash there since. A few parents tried to blow it off as something that couldn't be "monitored" effectively, and they changed their tune when we told them it would be upwards of $400 a month to have someone come pick up the trash.

In theory a new law or rule should do the trick, but the reality is that there are two many homeowners/renters who only think of themselves and no one else. All the rules in the world won't stop those individuals.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
Let me be more clear on renters and restrictions. Yes, many HOA's have drafted rental limitations in their documents. However, just because they are there does NOT make them "legal". Still have to fall in line with local, state, and federal laws. Example: Your HOA sets a max of 10 rental properties at a time. You fall onto hard times and need to move out of state for a job. You need to rent your home. Well you are now #11 or #12. What happens? Does your HOA fine you for using the home as rental? What is the exact punishment written that you the owner has to face? Just because it says Max 10 renters, what does it mean for you #11?

You could sue your HOA for the right to rent your property if you are #11. The HOA should have some kind of "hardship" rule in addition to the limitation. Which then means what if more than 2 people have hardship issues that need to rent? That kind of kills the limitations doesn't it?

The HOA is still a THIRD party to any homeowner's rental agreement no matter how you slice it. A lawyer told me that as long as the HOA does NOT own the property, they can't interfere with a rental agreement. It's more likely up to the Mortgage company that can put rental restrictions on your property after you buy it. Some will not allow it to be used as rental up to 2 - 5 years.

I used to own rental property in my HOA. The HOA could only hold my feet to the ground for my renter's issues. However, without a fining schedule in place, one can't erroneously fine anyone. A HOA has a right to fine, but it needs defined. Which is more along the lines of what needs to happen here.

I for one don't think allowing owners to have dogs and not the renters is fair or right because you have a personal issue with it. The owner should write in their rental agreement if dogs are allowed and even to follow the HOA's rules. It's NOT a HOA issue to be involved with this.
Former HOA President
ChrisC16 (Arizona)
Posts: 9
Posted:
Using this logic, the renter is a 3rd party to the HOA and Owners contract as well. HOA is involved because the dogs are being walked in the common space.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
And the end of the world began because someone's dog walked in the common area... Sorry I couldn't resist... I had to clean up dog poop, put out dog repellent, and install a small temporary fence around a huge common area. It was to get the message across to STOP letting your dog's go there. Turns out the BIGGEST offender who was an owner complained the Dog repellent bothered their sinuses and complained. So no there is no winning in the dog bathroom war in a HOA renter or not. I just say designate and area and get over it.
Former HOA President
RichardP13 (California)
Posts: 1,767
Posted:
Melissa

You are incorrect to assume the HOA cannot interfere with a rental/lease agreement.

f the city allows 4 pets, the HOA may have adopted a two pet limit policy and it is considered "fair and reasonable". In addition, the tenant MUS follow the association adopted Rules and Regulations and the fine schedule that goes with it in terms of non compliance. So IF the tenant was out walking their dog and it pooped in the park, there could be a fine imposed. It would go to the owner who would pass onto the tenant. As a landlord, I would make sure I ma covered and would write specific language into the agreement to cover myself.
ChrisC16 (Arizona)
Posts: 9
Posted:
Its not the end of the world to have dogs here. And it wont be the end of the world when they're gone. It's not about winning, it's about having a nice place to live. This is a problem better served by going to the root of the issue than by case by case enforcement. I have no interest in policing my neighbors. You seem like someone who has gone through this on the other side, having to defend a tenant who's dog was making a big mess.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Okay make your new rule. Can you get 75% of your neighbors to agree and sign a document? Plus have the new changes filed and passed out? It is NOT just a board decision. It is the WHOLE HOA. Look at the requirement it takes to change your documents. It could cost a few thousand dollars to file, rewrite, hire a lawyer, and make new copies.

How is the HOA NOT a third party? Last I checked the HOA was not on my title when I signed it as a co owner. Thus that means they are a third party to that I owe money to. The renter owes money to me not the HOA. The renter does not pay dues and is not a member of the HOA. Just as the PM is not a member of the HOA. It is a paid contractor.
Former HOA President
RichardP13 (California)
Posts: 1,767
Posted:
Quote:
Posted By MelissaP1 on 02/26/2014 9:56 AM
Okay make your new rule. Can you get 75% of your neighbors to agree and sign a document? Plus have the new changes filed and passed out? It is NOT just a board decision. It is the WHOLE HOA. Look at the requirement it takes to change your documents. It could cost a few thousand dollars to file, rewrite, hire a lawyer, and make new copies.

How is the HOA NOT a third party? Last I checked the HOA was not on my title when I signed it as a co owner. Thus that means they are a third party to that I owe money to. The renter owes money to me not the HOA. The renter does not pay dues and is not a member of the HOA. Just as the PM is not a member of the HOA. It is a paid contractor.

Actually I could get 75% or more to sign a document. Thank You

The renter MUST abide by the rules of the HOA, no different than the owner or member in your case. IF they are in violation of those rules, I will go through the owner to collect, BUT I will collect.

And BTW, IF I have an Assignment of Rent, I can collect directly from the tenant, IF the owner is delinquent. And BTW, IF a lien is placed on your property, I am on title, whether you like it of not.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Emphasis added:

Quote:
Posted By ChrisC16 on 02/26/2014 9:46 AM

This is a problem better served by going to the root of the issue than by case by case enforcement. . . I have no interest in policing my neighbors.

That lack of interest is, in my opinion, the root of the problem.

I would expect that your Association has a rule about picking up after your pet.
I would also expect that your Association has a rule that members are responsible for the behavior of their family, guests and tenants.

However, based on your posts, it appears that instead of holding those members responsible for the actions of their tenants you simply want to adopt a new covenant that tenants may not have dogs. This won't address the issue of members who won't clean up after their pets (which may also be happening or may happen in the future). The end result may simply divide the community over the issue.

As you can tell, I'm not a fan of adopting a rule to punish those few (you did post that "this does smack of a "a few ruined it for everyone"") who refuse to follow the rules already in existence. I think the better solution is to actually enforce the rules that are in place. However, you have already indicated that you have no interest in doing that.

CarolR11 (Colorado)
Posts: 2,563
Posted:
Still curious, Chris. How many homes in your HOA? What % are renters--any idea? I see you have a Property Mgr. Does s/he have an office on your premises?

Also, waaay above, Tim advises you to read your governing documents. It could be that indeed you'd have to get your CC&Rs amended, which would require ballots being sent out to owners, return envelopes and related expenses.

And that is so IF you legally can discriminate against rental owners in this way.You would, after all, be limited the pool of possible tenants thus interfering with their livelihood.

I still say your best bet is to ask the Board to enforce the rules about people picking up after their dogs with fines. Or perhaps chafing the fine to be stiffer. If the fine currently is in your rules & regs, the board probably can chafe it without owners' votes. That depends on AZ requirements.
RichardP13 (California)
Posts: 1,767
Posted:
Quote:
Posted By ChrisC16 on 02/25/2014 10:17 AM
Currently our community allows for unrestricted pet ownership. I have put on the agenda for next meeting a change to the CCR to allow dog ownership for owner occupied units only, effectively prohibiting renter occupied units from having a dog (of any breed). This is due to renters inability to clean up after their animals on a daily basis.

I'm new to HOA (this is my first HOA covered property). What should I expect in terms of next steps? A vote?

I used to work for a law firm that also owed a management company. A topic similar to yours came up. Now while I am in California and you're in Arizona, the problem you have is that IF it would pass mustard, and I do believe it is discriminatory, then you would have to have the percentage of homeowners, as stated in your CCRs, approve the change. While you may find this is a tenant issue, you are trying to discriminate against an owner legally renting out their unit.

Somehow, in this country, we have a habit of always making up new rules, when enforcing what we have would serve the same purpose and then some.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Well, of course, I meant to type "change" and "changing." Also meant to say that I'm in no way involved in the legal profession.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By CarolR11 on 02/26/2014 10:46 AM

It could be that indeed you'd have to get your CC&Rs amended

Carol,

In the initial post, Chris said it was a proposal to amend the CC&Rs.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Thanks for the correction, Tim.
JohnB26 (South Carolina)
Posts: 1,569
Posted:
as per the OP

What should I expect in terms of next steps? A vote?


yes, you may expect a vote to amend the CCRs

the methodology will be 'spelled out' within the CCRs themselves

usually the vote would be by ballot and or proxy at the annual meeting

usually 2/3 AYE votes from the TOTAL MEMBERSHIP required to pass

eg. 100 members = 67 actual AYE votes to pass

(quorum does not apply to CCR ammendment)

some states have ruled (under common law) that CCRs may NEVER be made more restrictive

check with the association attorney BEFORE proceeding

best of luck

it all reverts to CONTRACT law

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