conflict between rule and declaration

Hello everyone!

We have the following problem:

1. HOA declaration states that "Dogs, cat and any other household pets may be kept in the units, provided that they are not kept for commercial purpose and do not endanger the health of any owner or resident"

2. HOA rules and regulations state that "pets are limited to 20 punds and no aggressive breeds are allowed."

Can HOA enforce this limiting rule? As I understand rule conflicts with declaration as it restricts implied right given by declaration. Am I right?

Thank you!

I do not think the HOA can enforce the weight limit rule and, say, win in court, for the reason you give.

I think the rule prohibiting aggressive breeds poses two problems: First, it is too ambiguous to be enforceable. Second, under the Declaration, the HOA already has the right to take action against a dog who bites a person or another dog, so the rule against "aggressive breeds" seems superfluous.

Much of what you Gimme sounds like someone attempting to get around the rules ... if not, I apologize.

Stating there isn't a mechanism for weighing sounds much like my time building satellites where every engineering process had to be completely documented. I think this is a bit simpler than what you state.

In a scenario - someone moves into a neighborhood with a 20 pound weight limit on dogs and they have a 80 pound dog - the Board, while trying to enforce runs into the CCRs and R&Rs like in your case - then the Board must decide whether they want a neighborhood of large dogs or not - then decide to spend the money to ensure they get what they want.

If this sounds negative, I'm sorry - many of those asking questions on this site are seeking ways to avoid following the rules.

If you are a Board member and your Board decides it wants to restrict to weight, let it go to court for first level resolution. Then, if given feedback on what MUST be in the CCRs for it to win in court, make those changes to your CCRs and try and get it passed by the HOA membership.

'Most' CCRs give the BOD power to establish R&Rs governing the 'common elements'.

If a private home (or townhouse) on public streets IMO no additional rules re: pets.

If a private home (or condo unit) abutting private roads or common hallways IMO the BOD may regulate the use of the common area.

Complex, not complicated.

Usually, Jen, bylaws won't deal with this type of topic.

Jennifer,

R&Rs are granted by the Declaration/CCRs.

Bylaws provide community governance processes.

I'm not, you are correct, but in our docs, it's the by-laws that give power to the BOD to create/change R&Rs.

The Declaration and by-laws are silent on pets. I'm getting a pony :p

Maybe I am reading it wrongly, but in the by-laws, under duties and obligations, one of them is to make, establish, enforce, etc certain house rules that are necessary for the operation, USE, and OCCUPANCY of the Condominium project which may be amended from time to time.

My understanding is that is where the power to decide how many pets, of what type, etc. comes from, but I do admit I have not made a serious study of it.

to repeat:

Our R&Rs are filed with our docs. In the introduction to R&Rs, it says:

So and So Association is subject to Covenants and they are our primary governing doc...etc.....etc...the Covenants contain built in flexibility to allow the association to further refine operations of the association....etc....etc.....through Rules and Regulations. It says the same things about our Bylaws.

The way I see it, an R&R can clarify and restrict but cannot override a Covenant nor Bylaw.. Some examples:

1. The BOD cannot shut a pool down without owner approval but they can control the hours it is open via R&R.
Say open 7am to 8pm or say from 1pm to 2pm only. Big difference.

2. Can say what type fences are allowed if the Covenants allow fences. Cannot say no fences if fences are allowed via the Covenants.

3. Can set limits on pets (such as weight, breed, etc.) but if the Covenants allow pets, they cannot ban pets.

No, I think board can't restrict Declaration's statements at all. Because otherwise Board could adopt such restrictive rules that in fact homeowners woudn't be able to exercise the rights given them by Declaration.
For example: homeowners are eligible to use pool but Board allowed to use it only 1 minute a day. Or homeowners can have dog but its weight is limited to 1 pound. In both cases Board didn't prohibit anything formally but in fact they did it. That is why any restrictions to Declaration should be adopted as amendment to Declaration by voting of all association members. Board shouldn't have right to change it on its own.

Taken to the other extreme, you are saying they can't make any rules at all. Someone could say the pool should be open 24 hours a day and they can have as many pets of any type as they want.

20 pounds is lower than I have usually seen, but it isn't analogous to 1 pound. How large is the dog you have or want to have? Is it considered an 'aggressive breed'? The type that are usually on banned lists? Doberman, GS, Akita, Chow, bully or boxer breeds, etc.?

Did the board change from a higher weight limit to a lower one?

The question now becomes: What will the judge rule?

Yep - number of dogs is general, type of dog is personal.

But, rules should be rules.

JenniferG11
No, board can adopt many rules but that rules can't affect rights declared in CCR.
If we talk about dogs (if CCR allows to have dogs) board can fine for dog's barking, they can force owners to walk dog on leash, they can even prohibit walking dog on the property at all but they can't forbid residents from having any kind of dog.

If CCR tells that homeowners may swim in a pool (without any limits) Board can prohibit playing in water, sunbathing, smiling in the pool but they can't prohibit swimming even if someone wants to swim naked at night.

To make long story short:
1. CCR is like constitution. It declares basic rights and authority (board) can't override that rights.
2. If Board wants to adopt rule that contradicts ССR then they need to amend CCR by changing conflicting provision or cancelling it. In the latter case Board would be free to set any rules they need.

Yeah, no, that doesn't make any sense.