By David Swedelson, Senior Partner, SwedelsonGottlieb, Condo Lawyer and HOA Attorney
We are often asked by boards and managers whether a California condominium or planned development homeowners association (HOA) has the right to have a dog or another pet removed from the association because it violates the association’s governing documents. Sometimes, the violation has to do with the dog creating a nuisance, barking incessantly or creating other problems such as being too aggressive and threatening. Other times, the dog is too large and does not comply with the association’s governing documents, which may limit the size of the dog, or other pet for that matter, that can be maintained at the association. And sometimes, the CC&Rs may limit the number of pets an owner can maintain in their unit.
The answer is yes, an association can seek to have the pet removed if the resident’s pet is violating the association’s governing documents. And there is a good chance that an association would be able to have that pet removed. Such was the case in the San Vicente Villas Homeowners Association vs. Cohen lawsuit which we prosecuted all the way to the California Court of Appeal. We wrote an article some time ago following the Appellate Court’s decision in 2003 confirming the trial court’s decision that Ms. Cohen’s dog must be removed from the Association. Follow this link to our article, The $1000 Per Pound Dog.
Before you pet lovers start sending vicious emails and comments chastising me for handling this case, there are a few facts you need to know. First, I am an avid pet lover and currently have three (3) dogs that my family and I rescued.
More importantly, we made every effort to resolve the dispute with Ms. Cohen before the lawsuit was filed. We offered her a year to find either a new home for the dog (which she rescued and promised she was going to find a home for initially) or to have her relocate with her dog. She refused and claimed the association had no right to have her dog removed. She was wrong.
The San Vicente Villas Homeowners Association vs. Cohen case is important for several reasons. Cohen argued that the association could not require that she remove her large dog because the association had previously failed to require other large dogs to be removed. The court considered that argument because the association had told the owners that it was going to enforce the weight restriction.
Cohen also claimed that a weight restriction was unreasonable; the court did not agree.
And the court agreed that her dog could not stay at the association as it weighed more than 15 pounds.
Although San Vicente Villas Homeowners Association vs. Cohen is an unpublished decision (it cannot be cited as law in another case), it seems fairly clear that if an owner’s or resident’s pet is violating the association’s governing documents and refuses to bring themselves and their pet into compliance with the association’s governing documents, a court is going to not only order that the pet be removed, but also that the homeowner pay the association’s attorneys’ fees and costs, as was the case in San Vicente Villas Homeowners Association vs. Cohen where Ms. Cohen was ordered to pay $55,000 in attorney fees (the approximate weight of the cherished dog Ms. Cohen rescued was 55 pounds).