Prohibiting Pets
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RIGHT TO A PET

QUESTION: Our CC&Rs prohibit pets. We are fearful that the new election law may affect our restriction.

ANSWER: Your fears are well founded. By requiring all associations to adopt election rules, I believe the legislature inadvertently voided all pet prohibitions in California. Any governing documents modified after January 1, 2001 must allow pets.
No governing documents shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet within the common interest development . . . This section shall become operative on January 1, 2001, and shall . . . apply to governing documents entered into, amended, or otherwise modified on or after that date. (Civ. Code §4715).)
Rule Change. Election rules are part of an association's Rules & Regulations. (Civ. Code §4355.) Rules & Regulations are defined as governing documents. (Civ. Code §4715.) Therefore adoption of election rules immediately voids pet prohibitions and allows owners to have birds, cats, dogs, and aquatic animals kept in aquariums. (Civ. Code §4715, Civ. Code §5105(a).) Your board cannot preserve your pet restriction by refusing to adopt election rules since all associations "shall" adopt election rules.

Office of Legislative Counsel. At the request of Senator Kuehl, the Office of Legislative Counsel reviewed the underlying statutes affecting pets and arrived at the same conclusion. On July 19, 2007, the Office issued an opinion letter:
  [I]t is our opinion that, under Section 1360.5 of the Civil Code [new: Civ. Code §4715], the adoption of a rule by a common interest development to comply with the election requirements of Section 1363.03 of the Civil Code renders unenforceable a provision of the governing documents of that development that prohibits the keeping of at least one pet.
Recommendation: Although the opinion of Legislative Counsel does not have the force of law, it indicates the direction the courts will probably go. Accordingly, boards should seriously consider amending their CC&Rs to limit the number, size and breeds of pets in their developments. If they do not, pet ownership could be unrestricted, i.e., multiple dogs per owner, Pit Bulls, etc. Moreover, if pets are brought in before new restrictions are adopted, the pets are automatically grandfathered and associations cannot force their removal. (Civ. Code §4715.)

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