Dealing with pets in a community association: Man’s best friend or an association’s worst enemy?

Now that warm weather is finally here, many associations are discovering multiple areas of green space in their communities that have been damaged by pet waste over the winter months.  Those brown patches of grass are unsightly enough, but what about the more offensive solid waste left by pets—and their owners?  And what about all the animals that have been cooped up all winter and now have an opportunity to run free?  How can an association regulate issues related to animals in the community?

To be clear, the great majority of animal owners are responsible.  They pick up their pet’s waste immediately, they keep their animals on leashes when outside, and they take care to control their pets, particularly around other people (and other animals). To those owners: Thank you.

But, as with most groups, there are a few “bad apples” that create problems for all association members, and cause headaches for association management and association boards.

Establishing Pet Rules

Pets are permitted in most community associations, though there are some communities that prohibit them.  Most associations, however, also have rules related to the keeping of pets in the community.  When establishing rules, it’s important to consider why the rule is being adopted.  Is it because the community wants to ensure its grounds remain in good condition and visually appealing?  Is it because the style of community (e.g., an apartment-style condominium community) has limited green spaces and just isn’t designed to have lots of animals?  Or is it because the members of the community have expressed a desire to live in a community free of animals?

Pick it up!

While it may seem obvious to most that it is simple neighborly courtesy to pick up a pet’s waste—and, in fact, most city ordinances require it—most associations have a specific rule requiring owners to do so.  It seems that, absence a specific rule requiring owners to pick up their pet’s waste, some owners contest an association’s right to declare a failure to pick up waste to be a violation of the governing documents because “it’s not in the rules.”  (Never mind that all residents of a city are subject to city ordinances, and that most associations’ governing documents provide that a violation of an ordinance or law is a violation under the governing documents, which also entitles the association to impose fines.)

Of course, determining whose waste it is can sometimes create friction.  Owners claim “my dog’s waste doesn’t look like that,” or “my little dog’s waste isn’t that large,” and every possible variation of such claims.  Several years ago, apartment complexes on the East Coast began requiring tenants to have their pet’s DNA to be registered as a condition of having the pet in the complex.  When pet waste is found on the apartment’s grounds, it is sent to a lab for analysis.  If the DNA of the waste matches that of any animal in the complex, that pet owner is assessed the cost of the lab testing and is assessed a fine for failing to pick up the animal’s waste.

DNA testing is not inexpensive, and whether an association could require a homeowner to submit a dog’s DNA as a condition of having an animal (as opposed an apartment complex owner requiring a tenant to do so as a condition of leasing an apartment in the complex) is an open question. Further, in many communities, people from other neighborhoods often walk their dogs through the association.  Where dogs other than those who live in the community are potentially relieving themselves within a community can make it difficult to match waste to a particular dog, since dogs living outside the community will not have their DNA on file with the association.

For most communities, even considering a requirement for DNA testing is a drastic measure.  In most communities, residents know who the violators are—and, usually, those same violating pet owners repeatedly violate the rules requiring waste pick up.

Restricting the Number and Size of Animals

Many associations impose restrictions on the number of animals that may reside in a given home.  These rules are often more restrictive than city ordinance, and are most common in apartment-style condominiums, given the size of homes in such communities and the necessity to bring animals on to elevators and through common hallways so that they can be walked, etc.

Crafting rules that impose restrictions on the number and size of animals is relatively simple:  No more than 2 dogs, no dog over 50 lbs., etc.  As discussed below, however, enforcing such rules can prove far more difficult.

Restricting the Breed of Animals

More and more associations are seeking to adopt restrictions on certain breeds of animals—dogs, in particular.  As with number/size restrictions, it may be relatively simple to adopt a rule that states certain identified breeds—most notably “pit bulls”—are prohibited.  However, “pit bull” is a type of dog, not necessarily a specific breed.  Associations adopting rules restricting or prohibiting breeds should consider why the rule is being adopted.  In most cases, associations are concerned about the dogs being overly aggressive, causing injury to people or other animals, etc.  In such cases, associations are better served by adopting rules that address a dog’s behavior rather than a dog’s breed.

Enforcing Pet Rules

Once an association adopts rules regarding animals, it must enforce them.  Any rule that will not be enforced should not be adopted.  If an association chooses not to enforce a rule for some reason, it runs the risk that it then waives the ability to enforce that rule in the future.

In general, most associations adopt an enforcement practice under which the association issues a warning to an owner on a first animal violation, a fine on second and subsequent violations.  Often, the fines escalate upon repeated violations.  It is important to remember that associations subject to the Minnesota Common Interest Ownership Act (MCIOA), Minnesota Statutes Chapter 515B, the association is required to provide the unit owner with notice of the violation and an opportunity for a hearing before any fine is imposed.  (See Minnesota Statutes Section 515B.3-102(a)(11).)  Many associations’ declarations set forth specific time periods in which an owner must request the hearing and in which the association must hold a hearing and provide its decision on the hearing.

Some rules are far easier to enforce than others.  It is fairly simple to enforce rules regarding the number of dogs/cats permitted in a home at any given time:  just count them.  Enforcing rules imposing restrictions on dog size can be problematic.  Many associations have rules that state that, if an owner believes his dog to be within the weight restrictions, the owner can submit a veterinarian’s statement verifying the dog’s weight.  Bear in mind, however, that such a statement verifies the dog’s weight on that particular day, at that particular time.  For an animal that is close to the maximum size, weight on one day could be within the restrictions, while weight on another day could be in excess of the maximum permissible weight.

As discussed above, enforcing rules regarding pet waste can be difficult if an owner contends that waste is not his pet’s waste.  Some associations avoid that discussion entirely by charging an annual “pet fee” to each owner with an animal (or owners with “outdoor” animals), then using those fees to pay for waste pickup and waste damage repair.  Of course, responsible pet owners may chafe at having to pay a fee to cover the costs to pick up other owners’ pet waste, but, absent a system that can definitively identify which pet’s waste is at issue—or one in which offending owners take responsibility for their pets—having all animal owners contribute to the cost incurred as a result of the actions of a few owners’ animals may be the only viable solution. (Arguably, owners whose pets are “caught in the act” could still be fined for the violation.)

Associations that adopt rules restricting specific breeds of an animal should be prepared to encounter owners who assert that their animal is not the restricted breed, but, rather, a breed that may be similar, but not restricted.  Here, as noted above, a better course of action for associations may be to regulate dogs’ behavior, not their breeds.

In extreme cases—cases where noncompliance is persistent or where animals are prohibited in a community—an association may have to seek legal intervention to address the violations.  In those cases, the association may seek a court order requiring a violator to comply with the provisions of the association’s governing documents (which include the rules)—which may require that an animal be removed from the association.  If the association is subject to MCIOA or its governing documents so provide, it may be able to assess the attorneys’ fees and costs related to such enforcement action against the violating homeowner and his account with the association.

“Pet” or “Service Animal”?

Whether an animal is a pet or a service animal (entitling its owner to certain accommodations under the federal Fair Housing Act) is beyond the scope of this article.[1]  However, simply because an animal is identified as a service animal does not mean that such animal and its owner do not have to abide by rules requiring owners to pick up after the animal, or to keep the animal muzzled when outside the home (unless muzzling impedes the animal’s ability to provide the necessary services the animal provides its owner), etc.  Those rules apply to service animals and pets alike, but associations are encouraged to consult with legal counsel to discuss enforcement of rules against owners of service animals before alleging a violation by such owner.

Most associations do not seek to discourage pet ownership altogether.   Working with management or legal counsel to establish clear rules that are intended to encourage responsible pet ownership is the first step to creating a community where pets and people can live harmoniously.  Enforcing pet rules against those that threaten that harmony is essential to restoring that harmony—and ensuring that the association’s board is acting to protect every owner’s interests.

*Orginally published in My Community Living magazine.
http://issuu.com/cai-mn/docs/cai-mn-mcl-may-jun-2015-online