Dear Mr. Richardson,
I am hoping you could help me with my HOA that’s trying to remove my daughter’s support dog because of its weight and breed. They are threatening to come and have her removed because she got too big. Can they do this? It would devastate my daughter if they took her dog.
SL, Highland
Mr. Richardson,
Our CC&Rs state that no animal of any kind shall be kept in any unit. Recently, a resident adopted a large dog. The board approached the resident and a few days later she provided a letter from a psychiatrist stating that she suffers from anxiety and that the dog is a support animal. The letter claims that the Fair Housing Act gives her the right to keep the animal despite the CC&Rs. Do HOAs have any recourse in this situation? The resident is a renter, not an owner, if that makes any difference.
KW, Redondo Beach
Dear SL and KW,
Emotional support animals are not "pets" and are not subject to HOA pet rules. The HOA must allow such animals as a "reasonable accommodation," per the Fair Housing laws and regulations. However, the dog could become an unreasonable accommodation if it menaces or bothers other residents or damages the property. HOAs can hold the owner responsible for problems the dog causes. Also, the HOA can require that the animal be under the control of the individual — per Fair Housing Regulation 12185(d)(6). As to restricting size or breed, Regulation 12185(d)(5) specifically bars breed, size, and weight limitations as to assistance animals.
Sincerely, Kelly
Dear Kelly,
Our HOA just fined me for renters having two dogs over the 25-pound limit in the rules and regulations. Is that allowed? Our rules and regulations were updated in 2003. I thought Davis-Stirling outlawed the ability of HOAs to discriminate based on dog size, weight, or breed.
AB, Solana Beach
Dear AB,
Since 2001, when Civil Code Section 1360.5 became effective, the law has protected the right of HOA residents to have at least one "pet", defined as any dog, cat, domesticated bird, or aquatic animal in an aquarium. That law is now found at Civil Code Section 4715. To me, the word "any" means any dog, not just small ones. I do not think weight or breed restrictions are enforceable, as the right to "any" dog is protected. Section 4715(e) says it applies to governing documents amended in 2001 or later, so your HOA’s 2003 rules would have to comply with the statute.
The size of a dog isn’t what makes it a nuisance. It is the animal’s behavior and/or its care by its owner that can create problems for other residents. In the rules, the HOA should focus on the way dogs can be bad neighbors and not worry about what kind of dog it is. The kind of dog neighbors want is just a good dog. Therefore, regulate barking, menacing, damage to property, or other ways in which dogs might harm the property or other residents. Honestly, a small dog can be just as much of a nuisance as a large one, so don’t worry about size.
Best, Kelly
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP.
