Restricting Renters' Pets
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RESTRICTING RENTERS' PETS

There is disagreement in the legal community over whether associations can prohibit renters' pets. Following are both sides of the argument:

ARGUMENTS FOR TENANT PETS

1.  Consistency. Rules cannot be inconsistent with the CC&Rs. If the CC&Rs allow owners to have pets, that right is passed to tenants. Except for voting rights and the right to attend board meetings, which are reserved to members only, renters enjoy all of the rights and privileges of an owner when they rent a unit. If an owner wants to pass on his right to keep pets to his tenant, the association cannot interfere with that right. In Liebler v Point Loma Tennis Club, the court held that when a common interest owner leases his unit, the renter automatically receives all rights to use and enjoy the common areas. Since it is the owner who chooses to allow a tenant to have a pet, or not, denying a tenant a pet is the same thing as denying the owner. Accordingly, an association cannot interfere with an owner's pets rights.

2. Landlord/Tenant. The owner, not the HOA, has the right under the statute to decide if a pet can be kept on the property.

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….

There is nothing in the statute to suggest the owner could be made to forfeit that right by renting out the separate interest. The statute does not define “keeping” and does not require the pet to be the owner’s pet. It could be anyone’s pet, such as a pet owned by the owner’s minor or adult children, a pet owned by a guest, or a pet owned by a tenant. If the legislature intended otherwise, they could have so indicated.

3.  Reasonableness. Rules must be reasonable. A rule is unreasonable if it does not serve a legitimate purpose. In this case, renter pet prohibitions are directed at status rather than conduct since a renter's dogs don't behave any differently than an owner's dogs.

4. Smoking Comparison. Compare this to smoking. Owners may allow or disallow smoking in their separate interest by statute. But HOAs can override an owner’s desire to have a “smoking” unit with governing documents because there is no statute mandating that an owner be allowed to smoke in his unit, as exists with pets.

ARGUMENTS AGAINST TENANT PETS

1.  Not a Common Area Right. The Liebler decision dealt only with the transfer of common area usage rights to a tenant, and keeping a pet is not a common area right. As a result, Liebler v. Point Loma cannot be used to support a tenant's right to keep a pet. Following are additional arguments:

2.  Statutory Interpretation. The Davis-Stirling Act does not support renters' pets. The statute gives rights to owners not renters. It was amended in 2001 to state that:

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, subject to reasonable rules and regulations of the association. (Civ. Code §4715(a).)

The legislature could have expanded the section to include renters or residents but chose not to. Many other provisions in the Act reference renters (such as Civ. Code §4740) but the legislature did not to include them when it came to pets.

3.  Landlord/Tenant. Apartment building owners routinely prohibit tenants from keeping pets in apartments as do condominium owners. When it comes to associations, the Act specifically authorizes the adoption of reasonable rules concerning the leasing of units. (Civ. Code §4715(a).) Because of the transient nature of renters and the difficulty of enforcing rules against them, it is reasonable for an association to restrict renters from keeping pets.

4.  Timeshares. When it comes to timeshares, the argument for pet restrictions is stronger. Timeshare associations have the right to prohibit both fractional owners and renters from bringing pets into units. Business & Professions Code §11211.7 enumerates the sections of Davis-Stirling that apply to timeshare ownership but does not include pet restrictions. In other words, Civil Code §4715 does not apply to timeshare associations.

Recommendation: Because the law unsettled on this issue, associations should consult legal counsel before adopting renter pet restrictions.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC