Drafting pet rules that won't turn around and bite condo boards

By Benny L. Kass
Saturday, May 8, 2010

Q: I am on the board of directors of our 125-unit condominium. There are a large number of pets in the complex, and I am unable to locate any rules that previous boards might have adopted regarding pets. Can our board create rules? If so, can they be enforced against current pet owners or only against owners who get pets after the rules are adopted?

A: Pets, parking, people, portals, pianos, picnics and presidents: As a board member, you will face some, if not all, of what I call the P's of community association living. And problems with pets usually top the list.

First, you must review your legal documents, especially the bylaws for your condominium. Usually, there is a section titled "Restrictions on Use" that will address such matters as renting, noise, nuisance and the proper use of common elements. You should also find a section titled "Pets" in the same part of the bylaws.

Do your bylaws prohibit pets? If so, unless the unit owners vote to amend the bylaws, your board should immediately take action to ensure that owners and tenants remove their pets. A board of directors cannot, by adopting a rule or regulation, contradict what is written in the bylaws.

However, if the bylaws permit pets, then the board can enact procedures regarding them.

All local jurisdictions in the Washington area require pet licenses. For example, in Montgomery County, all dogs and cats must have a current rabies vaccination and a county license when they reach 4 months old. The rabies tag has to be provided by a licensed veterinarian before the license can be obtained from the county. Fairfax County and the District have similar requirements. In Arlington County, however, cat owners do not need a license.

Your association cannot ignore local laws. When you adopt a rule about pets, paragraph No. 1 should read: "All owners must register their pets with the board of directors or the managing agent within two weeks of obtaining a pet. Registration will not be accepted unless the pet owner produces a current copy of the license issued by the county (or by the District of Columbia)."

Can the board regulate the number of pets a unit owner can have? Yes. Condominium law throughout the United States has made it clear that if something is not specifically prohibited in the legal documents (such as the declaration or the bylaws), a board of directors has the right to enact reasonable rules regarding that activity. Thus, if your bylaws merely state that "pets are allowed" and does not place any restriction on the number of pets, the board can impose a limit on how many pets an owner can have.

Some associations try to limit the size of dogs by using language such as "only small and medium-size dogs are permitted." This is vague and unenforceable; your definition of "medium" will be different from mine. Other associations impose a limit on weight and size, but that also creates problems. I have been involved in situations in which an owner starved his pet for a week to comply with the weight requirements. And enforcement of such a rule is difficult; as a board member, you are not going to carry a ruler and a scale every time you walk around the property.

Accordingly, in my opinion, the better procedure is to list those dogs that are specifically prohibited. Many associations will restrict Doberman pinschers and Rottweilers based on their perceived danger to the community. Other communities will restrict Great Danes, Irish wolfhounds and Saint Bernards, based solely on their large size.

Most important: Your rule should regulate the conduct of owners and their dogs within the unit and on common grounds. In the unit, the rule should deal with excessive noise. For example, in Arlington, if a person permits an animal (even a bird) to create a frequent or continued noise disturbance "across a real property boundary or within a nearby dwelling unit," that is a misdemeanor punishable by a fine of up to $1,000 and possibly 30 days in jail.

On the common elements, dogs and cats must be leashed at all times, and owners must pick up after their pets. In fact, many associations provide free waste disposal bags to accommodate pet owners.

You asked whether your board's rule can be applied to current owners. Yes, the law is clear that any owner is bound not only to rules that were in existence at the time the owner took title to the property, but also to any new rules or regulations that a validly elected board of directors properly adopts.

The Community Association Institute is a national group based in Alexandria that represents the interests of associations, including condominiums, homeowner associations and cooperatives. Its publication, "Pet Policies: How Community Associations Maintain Peace & Harmony," covers a range of pet problems and ways to deal with them. Copies are $25 from http://www.caionline.org.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.

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