Small breed dogs

MaureenM1 (PA)
Posts: 344

Posted:

I checked the forum on this subject but have only seen posts from 2011 so I’m starting a new one...

Our hoa has had a small breed dog resolution since the inception of our development in 2005. All homeowners must sign at closing. Only small dog breeds are allowed. It was never a problem until now when a homeowners sold his home and recently the new homeowners has been seen walking a medium/large dog. The person who sold his home was an ex board member and had lived here with a small dog for many years and was well aware of the
Small dog rule because he used to stop people who were visiting with large bred dogs asking them about the dog.

Our board will address this on Tuesday with our management company but at this point the animal is already here and the house has been sold. Does the board have an pay recourse other than put a policy in place so this doesn’t happen again.? ie Management comapmy contacts homeowner when selling rei insuring seller is making our restrictions own to potential buyers ?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MaureenM1 on 06/23/2019 2:42 PM
Does the board have an pay recourse other than put a policy in place so this doesn’t happen again.? ie Management comapmy contacts homeowner when selling rei insuring seller is making our restrictions own to potential buyers ?

Quote:

Posted By MaureenM1 on 06/23/2019 2:42 PM

Our hoa has had a small breed dog resolution since the inception of our development in 2005. All homeowners must sign at closing.

Obviously, a new policy won't do anything as you already have a policy in place that, per you, the new owner signed a document saying they received and were aware of the policy.

The questions are, is the existing policy enforceable (considering it's a policy and not a covenant) and will the board actually enforce the existing policy or not.

If the Board chooses to enforce the policy, how far are they willing to go (translation, how much are they willing to spend on legal action)?

If the board chooses not to enforce policy, the existing policy means nothing and the board would have opened the door for selective enforcement the next time you try to enforce the existing policy.

My suggestion, prior to the meeting, the Board should seek a legal opinion if the policy is actually enforceable or not. This way, the board will be able to make an informed decision.

Here are some resources:

Enforcing Pet Restrictions: What's Allowed And What's Not? article by an attorney.

A Fine Line in Regulating the Ownership of Pets from a management company

Emotional Support Animals and HOA No Pet Policies 2017 article from CAI

The Fair Housing Act and Assistance Animals from the humane society

Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs From HUD

Hope this helps.

MaureenM1 (PA)
Posts: 344

Posted:

I just reread the document I signed 14 years ago. The small dog restriction is also part of our declaration.

MaureenM1 (PA)
Posts: 344

Posted:

Thank you I just reread my resolution that I signed in 2005. It’s also an article of our recorded declaration

GenoS (Florida)
Posts: 4,276

Posted:

Resolutions aren't worth the paper they're written on when they seek to impose restrictions not present in the actual CC&Rs or declaration of covenants. It's not up to a seller to make sure that his or her buyer agrees to anything. A new owner is subject to the CC&Rs whether or not they sign any superfluous paperwork. Sounds like my board here where they think by getting the owner to sign something (in our case it's usually about plants and landscaping) the next owner is also bound by it.

If the dog breed restriction is actually in your CC&Rs then there's nothing to sign and just because someone might actually sign it doesn't really matter one way or the other. Enforce your CC&Rs and give no credence to any claims that something was or wasn't signed.

TimM11
Posts: 354

Posted:

What is a "small breed dog" in this context? Is there a stated weight/height limit?

Lots of dogs are small compared to, say, a St. Bernard.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By MaureenM1 on 06/23/2019 2:42 PM
Our board will address this on Tuesday with our management company but at this point the animal is already here and the house has been sold. Does the board have [any] recourse other than put[ting] a policy in place so this doesn’t happen again? [E.g.] Management company contacts homeowner when selling [re] insuring seller is making our restrictions [kn]own to potential buyers?

Maureen, is your community a condo, cooperative or "planned community" under Pa law? I see Pennsylvania law already requires the seller, prior to execution of the sales contract, to provide the purchaser a copy of the declaration, bylaws, and rules and regulations. See Pennsylvania statutes sections 3407 (condominiums), 4409 (cooperatives), and 5407 (planned communities). Furthermore courts have long held that the filing of the Declaration with the County serves as public notice that binds purchasers. I understand your Board has the legal right and duty to enforce all covenants, including the pet restriction, with the caveat that disability law may make the restrictions unenforceable in some cases. See the links Timb4 provided. I do not think the Board should adopt a further policy that merely repeats what already appears in the Declaration and Rules and Regs. Nor do I think management should back up what the statute already says about disclosure.

Unless the new member is legally disabled such that the dog is needed to accommodate this disability, a good solution here is not clear. If I were on this HOA's board, then I would be bound to enforce the covenants as they appear in the Declaration and as elaborated on in the Rules and Regs. I would suggest writing a formal letter to the new member, written in as polite language as possible. Maybe something like the following:
----
Dear new Happy Acres HOA member John Smith,

Welcome to Happy Acres! We are so pleased to have you as a new member. Unfortunately, a matter has come to the Happy Acres Board's attention, and the Board is obligated to make inquiries about this matter as follows.

Pursuant to Pennsylvania statutes sections 3407 (condominiums), 4409 (cooperatives), and 5407 (planned communities), a seller must provide a purchaser a copy of the Declaration, Bylaws and Rules and Regulations prior to execution of the contract. If you were not provided these documents, the HOA board suggests you contact the real estate agent involved in the transaction. Happy Acres HOA's Declaration, Rules and Regulations restrict the size of dogs to __________________________. See Declaration Section _____ and Rules and Regulation _______________. Under some circumstances, federal and state law requires that the HOA grant an exception to these covenants.

The HOA understands that you have a dog whose size appears to be a violation of Happy Acres HOA's covenants and Rules and Regulations. Respectfully, can you explain to the board the reason for having a dog whose size exceeds that the HOA allows?

Thank you for your assistance and patience with this matter.

Sincerely,

Happy Acres HOA Board of Directors
-----

One more caveat: If your community has large, rural lots, the restriction on dog size may be unenforceable.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Augustin,

What you suggest is a good way to approach the issue.

MarkW18
Posts: 1,290

Posted:

Quote:

Posted By AugustinD on 06/24/2019 6:50 AM

Posted By MaureenM1 on 06/23/2019 2:42 PM
Our board will address this on Tuesday with our management company but at this point the animal is already here and the house has been sold. Does the board have [any] recourse other than put[ting] a policy in place so this doesn’t happen again? [E.g.] Management company contacts homeowner when selling [re] insuring seller is making our restrictions [kn]own to potential buyers?

Maureen, is your community a condo, cooperative or "planned community" under Pa law? I see Pennsylvania law already requires the seller, prior to execution of the sales contract, to provide the purchaser a copy of the declaration, bylaws, and rules and regulations. See Pennsylvania statutes sections 3407 (condominiums), 4409 (cooperatives), and 5407 (planned communities). Furthermore courts have long held that the filing of the Declaration with the County serves as public notice that binds purchasers. I understand your Board has the legal right and duty to enforce all covenants, including the pet restriction, with the caveat that disability law may make the restrictions unenforceable in some cases. See the links Timb4 provided. I do not think the Board should adopt a further policy that merely repeats what already appears in the Declaration and Rules and Regs. Nor do I think management should back up what the statute already says about disclosure.

Unless the new member is legally disabled such that the dog is needed to accommodate this disability, a good solution here is not clear. If I were on this HOA's board, then I would be bound to enforce the covenants as they appear in the Declaration and as elaborated on in the Rules and Regs. I would suggest writing a formal letter to the new member, written in as polite language as possible. Maybe something like the following:
----
Dear new Happy Acres HOA member John Smith,

Welcome to Happy Acres! We are so pleased to have you as a new member. Unfortunately, a matter has come to the Happy Acres Board's attention, and the Board is obligated to make inquiries about this matter as follows.

Pursuant to Pennsylvania statutes sections 3407 (condominiums), 4409 (cooperatives), and 5407 (planned communities), a seller must provide a purchaser a copy of the Declaration, Bylaws and Rules and Regulations prior to execution of the contract. If you were not provided these documents, the HOA board suggests you contact the real estate agent involved in the transaction. Happy Acres HOA's Declaration, Rules and Regulations restrict the size of dogs to __________________________. See Declaration Section _____ and Rules and Regulation _______________. Under some circumstances, federal and state law requires that the HOA grant an exception to these covenants.

The HOA understands that you have a dog whose size appears to be a violation of Happy Acres HOA's covenants and Rules and Regulations. Respectfully, can you explain to the board the reason for having a dog whose size exceeds that the HOA allows?

Thank you for your assistance and patience with this matter.

Sincerely,

Happy Acres HOA Board of Directors
-----

One more caveat: If your community has large, rural lots, the restriction on dog size may be unenforceable.

Looks to me as if your practicing law on this forum.

AugustinD
Posts: 5,144

Posted:

The unauthorized practice of law requires that one accept money in exchange for legal advice.

MaureenM1 (PA)
Posts: 344

Posted:

Thank you for your response. It was very thorough and the information very informative and useful. I appreciate the time you took.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By AugustinD on 06/24/2019 1:58 PM
The unauthorized practice of law requires that one accept money in exchange for legal advice.

Exactly right. Your management company, who you pay, cannot give you legal advice. Volunteer homeowners certainly can, and so can people posting on the internet. You must carefully evaluate that advice, however, since it's not always advisable to listen to it. Often free advice is worth exactly what you paid for it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I would make the letter a bit less:

Dear new Happy Acres HOA member John Smith,

We are pleased to have you as a new member. Unfortunately, a matter has come to the Happy Acres Board's attention, and the Board is obligated to make inquiries about this matter as follows.

Happy Acres HOA's Declaration, Rules and Regulations restrict the size of dogs to __________________________. See Declaration Section _____ and Rules and Regulation _______________. Under some circumstances, federal and state law requires that the HOA grant an exception to these Covenants.

The HOA understands that you have a dog whose size appears to be a violation of our HOA's Covenants.

Respectfully, can you explain to the board the reason for having a dog whose size exceeds that the HOA allows?

Thank you for your assistance and patience with this matter.

Cordially,

Happy Acres HOA Board of Directors

Also there seems to be confusion of is a Covenant or R&R he appears to be violating. In one sentence you say R&R's. In another sentence, in the same paragraph you say Covenants. Which is it?

AugustinD
Posts: 5,144

Posted:

I like JohnC46's edit, except that somehow, I want the new member to know that, if she or he was not given a copy of the Declaration et cetera (as Pennsylvania law requires), then she or he may have a legal claim against the realtor and/or seller.

I think this is a lousy situation. For the sake of everyone's peace, I am hoping the new member actually does have a disability that allows a service dog.

Geno, maybe we ought to toss in that there is a difference between "legal advice" and "legal information." E.g. I believe telling a HOA member, "You can go to the district court clerk and get a form for filing a restraining order against your neighbor, on account of the neighbor screams at you every time you pull into your driveway; phones you with obscene phone calls; and leaves vulgar notes on your door" is most likely legal information.

MarkW18
Posts: 1,290

Posted:

All this over a frigging small dog. God help us.

Where is pain in the ass when you need him.

MaureenM1 (PA)
Posts: 344

Posted:

Mark it’s a medium/larger dog and dog owners notice other dogs just like people with kids notice other kids.

Not sure what you mean by the second paragraph.

MarkW18
Posts: 1,290

Posted:

Quote:

Posted By AugustinD on 06/24/2019 1:58 PM
The unauthorized practice of law requires that one accept money in exchange for legal advice.

I don't see anywhere where money is mentioned, can you?

In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, a growing number of legal document assistants (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by computer-assisted drafting libraries, where the clients are asked a series of questions that are posed by the software in order to construct the legal documents.

RoyalP
Posts: 1,104

Posted:

Quote:

Posted By MarkW18 on 06/25/2019 1:16 PM
All this over a frigging small dog. God help us.

Where is pain in the ass when you need him.

puking

BarbaraT1 (Texas)
Posts: 821

Posted:

You really should change the policy to specify some objective definition of "small". A weight limit, for example - but even then you might get someone with a fat dachshund. I think "small breed" is sufficiently vague as to leave you open to claims of unequal enforcement.

PatJ1 (North Carolina)
Posts: 568

Posted:

Missed you RoyalP.

LetA (Nevada)
Posts: 2,679

Posted:

GAWD!!! MYOBW unless the dog turns into Cujo, then call animal control. Let the owner have his dog.

BTW AB-161 passed in Nevada, Governor Sisolak signed it into law before sin die.
https://www.reviewjournal.com/news/politics-and-government/2019-legislature/bill-would-limit-hoa-restrictions-on-pets-in-nevada-1606665/

RoyalP
Posts: 1,104

Posted:

..... Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up. .....

beating is more fun

YOU started me up

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I say "sick the dogs" on them instead of beating them. Although may want to decide the size of dog first...

Former HOA President

MaureenM1 (PA)
Posts: 344

Posted:

Thank you to those who responded responsibly and constructively. I don’t feel some of the other comments were appropriate for this website.

RoyalP
Posts: 1,104

Posted:

? who, in GAWDS name, do you think actually cares WHAT you think ?

The world is teetering on the brink of nuclear winter and you are fretting about the size of a neighbor's pet ?!

RoyalP
Posts: 1,104

Posted:

ps.

as Judge Judy would say: I don't care what you feel .....

may i not paraphrase a retired judge ?