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05/04/10: Pet Policy Procedures

HOUSING COUNSEL

By Benny L. Kass

Q: I am on the Board of Directors of our 125 unit condominium, and there are a large number of pets throughout the complex. I am unable to locate any rule or regulation which previous boards may have adopted regarding pet policies. Can our board now create rules? If so, can they be enforced against current pet owners or only against owners who get a pet after the rule is adopted?

A: Pets, parking, people, portals, pianos, picnics, presidents and psychiatrists. 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 tops the list.

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

Do your Bylaws prohibit pets? If so, unless the condominium association units owners vote to amend the Bylaws, your Board should immediately take action to ensure that owners (and tenants) remove their pet. A Board of Directors cannot – by adopting a rule or regulation – contradict what is written in the Bylaws.

However, if the Bylaws permit pets, than the Board can enact procedures regarding their use.

All of the local jurisdictions in the Washington metropolitan area have pet licensing requirements. For example, in Montgomery County, Maryland, all dogs and cats four months of age or older must have a current rabies vaccination and a County license. The rabies tag is to be provided by a licensed veterinarian, before the license is obtained from the County. (www.montgomerycountymd.gov/politmpl).

Fairfax County and the District have similar requirements. In Arlington County, however, cat owners do not need a license.

Your association cannot ignore the laws in the jurisdiction where your property is located. Accordingly, when you adopt a Pet rule, paragraph number one should read: “all owners must register their pet 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? The answer is 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 “pets are allowed”, without placing 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 sized dogs are permitted”. This is vague and unenforceable; your definition of “medium” will be different from mine. Accordingly, other associations impose a maximum weight and size limit, but that also creates problems. I have been involved in situations where an owner starved his pet for a week so as 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 which 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 gigantic size.

Most importantly, however, your Rule should regulate the conduct of owners and their dogs – both within the unit as well as on the common grounds. In the unit, the rule should deal with excessive noise. For example, in Arlington County, if a person permits an animal (or 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 $1000 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 pet. In fact, many associations provide free “poop bags” to accommodate their pet owners

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

The Community Association Institute is a national association representing the interests of associations (condominiums, home owner associations and cooperatives) throughout the United States. They have a publication entitled “Pet Policies: How Community Associations Maintain Peace & Harmony”. This covers a wide range of “pet problems” facing communities, and how to deal with them. You can purchase this on line (caionline.org, and click on publications) or at CAI, 225 Reinekers Lane, Suite 300, Alexandria, Virginia 22314.

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