help ! condo changing rules and regulations about pets

can a hoa board just decide to change the rules and regulations regarding pet weight without a vote, previously it was "if the pet will knowingly exceed 25 pounds" since my dog was a 3 month old abandoned puppy i of course had no way of knowing how much he would weigh, i have had him for 3 years and now the board is changing it to "anyone with a pet over 35 pounds has to remove the animal from the premises or pay $5 per pound that the dog is over" they say this includes current residents. so now apparently my options are to pay them an extra $90 a month or sell my house cause im not getting rid of my dog. there was no vote taken on this and they also say this applies to service dogs, which unless im mistaken is a clear violation of the fair housing act. im beyond pissed, you cant just up and decide that even though ive had my dog for 3 years i cant have him here anymore, hes not aggressive, i walk him on a leash, i clean up his waste. if thats the case can they just up and decide to start charging fines to people with more than 2 kids? my dogs are my children and in my eyes this is tantamount to extortion. please help me!

The previous rule had a loophole that allowed my dog by stating that if you KNEW the dog would eventually exceed 25 lbs, so if I bought a Great Dane puppy I would obviously know that he would eventually exceed 25 lbs, but my dog is a mixed breed that I had no way of knowing his eventual weight and the vet told me she believed he was a beagle/ dachshund mix, if she was correct he would have been within the weight limit but he is now 52 lbs, which I had no way of predicting. So he was within the previous rules and regulations due to that loophole which they are not only closing but trying to act retroactively as well, he’s been here for 3 years you can’t just decide it’s not allowed anymore

“If an animal is known that it will eventually exceed 25 lbs or is brought into the premises over 25 lbs the animal must be removed from the premises within 30 days. If the animal is not removed within 30 days the owner shall be liable to pay the association $100 etc....” so that would mean that if I have no way of knowing the weight of a dog at its full maturity which is impossible to do with a mixed breed puppy especially when my vet told me he would be a small dog than I am not included in that statement. I had no way of knowing that he would exceed 25 lbs

Is the weight restriction on dogs written in the By-Laws or the CCR's? Is there a City Ordinance with a weight restriction? If not, the Rule may not be enforceable. A vote of the membership would be required to change the governing documents to enforce this restriction. We were once requested to prohibit surround sound systems and sub-woofers from residences and to only allow carpet in upper units. Without the authority granted by our By-Laws or CCR's we would have had to amend them to enforce these requests.

OP stated that this is a R & R change, unless I missed it. My reply was based on that information.

Not the way they worded it, it doesn't. If the intention was to prohibit all animals over 25 pounds no matter what, it should have been worded that way, but it wasn't. The part about knowing the weight gives her an out under the old rule, if not the new one.

FWIW, this isn't an unusual situation at all, even when you know the breed. My dog is a purebred to the best of our knowledge, but 25 pounds would be right in the middle of the weight range, which for some breeds, can be fairly significant.

First, even if there was either a board vote or a membership vote, I think the courts would agree with you, Katie. Like TimM11 said, I believe the HOA is, at a minimum, required to grandfather your dog. One reason I think the courts would require grandfathering of your dog is that you bought your home based on the then existing rules. The courts, in so many words, say the then-existing rules form a de facto contract. A court would say it is unjust, under the rules of contracts yada, to make such a radical change to the rules (which is part of the contract) without grandfathering in pre-existing animals. A court might even say either the rule change, or the rule itself, is unlawful under the covenants, period. I grant there are shades of gray, but I think a court would agree that a dog comes close to being a child, and said dog should not be so easily evicted.

Second, it is entirely possible the board will not bother you. The HOA's attorney may very well have advised the Board that it has to grandfather dogs like yours. You might want to wait until and if the HOA issues you a violation notice. I think you do not have legal standing until the HOA does. Though you could go around saying to neighbors, calmly and quietly, "I believe the law requires the HOA to grandfather in pre-existing dogs that do not meet the requirements of the new rule." Just to let the Board know you are not taking this sitting down.

Third, like others said, can you quote exactly what the covenants (a.k.a. "Declaration") say about pets and dogs? It is possible the Board has overextended its reach with either the old rule, the new rule, or both.

Fourth, you may want to get an attorney's opinion at some point, but I would wait until the HOA starts hassling you. Even if one offers a prospective attorney money, in many parts of the country it is hard just finding one who can take your case.

Fifth, I am aware that Louisiana's precedent system is different from the other 49 states. I remain hopeful that the general rules of covenants established nationwide still apply. Justice is justice.

Good catch. I agree.

It's the "known" and "will" in the old rule that caused the issue. Twenty-five pounds is right in the middle weight range for a dachsund, and a bit on the high side for a beagle. So if the OP had a professional evaluation that said it was a mix of the two breeds, it was reasonable to expect that it could have been below that fully grown. Now, had the OP gotten, say, a mastiff puppy, you would have a point.

True, but even professionals make mistakes sometimes. I'm taking what the OP wrote at face value, in the absence of any reason to believe otherwise.

Every homeowner will have a different way of life and idea of what that should look like. Leaving aside the question of how far they should go, all HOAs can do to control that is to make clear, well-written rules and governing docs. Homeowners don't have any obligation to conform to someone's idea of association life outside of those documents (and laws, of course).

Hi Katie, you said above that the pupper was 3 months old. I don't see how it could have weighed 5 pounds at 3 months. I feel you ought to double check your Vet paperwork and the entirety of the old rules.

If it is viable to argue that it was not 'known' I will be very happy for you, I just have a hard time believing it will be that easy.

Our rules state the weight limit and then in another paragraph elaborate to include any puppy that will grow to above that weight and it's no loophole, it's to prevent a scenario exactly like yours from making a dog legal.

Is the language in your CCR’s or is it Rules and Regulations implemented by the BOD?

If it is in your CCR’s then the Owners would need to approve any change. The CCR’s are more legally binding because they are attached to everyone’s property titles, agreed to by owners when purchase, and amendments are agreed to by owners. The Rules and Regulations implemented by a BOD are much easier challenged because they are implemented by a handful of individuals without Owner consent. Therefore, they must be VERY “reasonable”. Potentially if you already owned a pet ... that pet should be “grandfathered”.

How do you figure? Katie wrote that: (a) The old rule states "if the pet knowingly will exceed 25 pounds," the pet is prohibited; (b) Katie's dog weighed 5 pounds at age three months; (c) The vet documented that the dog was believed to be a dachshund/beagle mix; and (d) Numerous sources attest that it is usual for dachshunds and beagles to weigh under 25 pounds in adulthood. With this documentation, and the grayness of the word "knowingly," I think that if push ever came to shove in a court of law, in this instance I think a court would say the rule (even if a covenant) is too imprecise to uphold.

Rules for pets in your unit would have to be in the Covenants, Conditions, & Restrictions (CC&Rs) and those usually require the membership to approve. If your CC&Rs don't state what the requirement is to change them, there may be a state law. Some states require a super majority of membership approval (such as 2/3) even if your CC&Rs state differently. The fact that the board is creating a rule that is less restrictive than the original rule (35 lbs vs 25 lbs) is irrelevant.

While many people choose to ignore certain words and phrases in CC&Rs, they all matter. Even a comma can change the whole meaning of a sentence. I agree with your interpretation of the "knowingly exceed 25 pounds." It may not be a smart rule but it is in plain English. If you reasonably did not know your dog was going to exceed 25 pounds, you are not in violation. However, if the board disagrees, it may end up being up to a judge who decides if you reasonably knew or not.

I agree with Geno on the above and the rest of what he posted here today. When a covenant is ambiguous or vague to the point of requiring guesswork, courts err on the side of 'free enjoyment of property.'

no , then it says once its over 25lb , wither you knew it was going to be or not, then it would be out.

I agree, if it was stated that way, but by removing "knowing" it also is implying even if you dont know and the animal still exceeds 25lbs then it has to go.

But with "knowing" still in the statement, it is implying only if you know its going to be over 25lbs. thus if you did not know, the statement is now null for the pet which you did not know.

I think it is true for all states. See the Restatement of Torts for common interest communities.

Whether a covenant is ambiguous is where I think the subjectivity lies.

Hmmm ... I keep getting stuck on the dog being twice the size allowed ...

You may be right but I believe that is an interpretation of common law. I know that common law can be interpreted differently from state to state and states can pass statutory law that would override common law. My experience is with criminal law but I believe the principle is also true for civil law.

Katie,

Do you live in a condo or detached home?

I’ve had him for 3 years. The board members have never said anything during that time or fined me, it’s not my POV but the actual rule itself that stipulated that, the language of the previous rule is vague and included the verbiage “knowingly will exceed” which excludes me

The new rule is the problem, they do not want to grandfather in dogs that were on the property under the previous rule. So even though when I got my dog 3 years ago and he’s been living here under that rule without issue for 3 years they are now saying that NONE of the large dogs that are currently on the property will be grandfathered in

Rules have to be "fair and reasonable". Doesn't matter which state you reside. I can make an argument of the size of a pet IF the owner were living in a condo, possibly with elevator, but what argument would fly in court IF the owner lived in a detached, single family residence?

I would like to know also.