Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #101 • February 2013
Enforcement of Pet Restrictions
by Steven S. Weil, Esq.
Introduction
In a recent B&W Alert (“In California, there are three types of animals…”) we addressed a resident's right to keep service and companion animals even if the CC&Rs for their community ban pets. The gist of that article was that state and federal law “trumps” the CC&Rs to create exceptions that prohibit an association from enforcing pet bans in medical- related situations. The thrust of this article addresses enforcement issues when the governing documents ban pets and no medical exception applies.
Pets are serious business. According to an article in the New York Post published earlier this year, a “down on his luck” actor committed suicide because of pressure from his Manhattan condo association complaining about his pit bull “Rocco.” The actor –who himself had been raised in an orphanage and foster homes –adopted his beloved pet from a shelter and they had a strong connection; his Facebook page allegedly said “I did not rescue Rocco, Rocco rescued me.” Thereafter, the association approved strict pet regulations and a ban on pit bulls; even though Rocco was “grandfathered”, neighbors complained and harassed him so much that the owner put his pet “to sleep.” Despondent, the owner killed himself a few days later.
Our state is ambivalent about pets. In 1994, the Supreme Court upheld an absolute ban on pets finding it was not unreasonable, unlawfully discriminatory or contrary to public policy (Narshtedt v Lakeside Village). On the other hand, we have disability laws that do not permit the ban to be applied in certain medical situations and a law enacted after Narshtedt which guarantees a resident the right to keep at least one pet in associations whose governing documents were adopted or amended after January 1, 2001. It is a complicated web. To help a board know the legalities, we've here assembled another of our “Rules and Tools” articles.
Interpretation of CC&Rs; Attorney Fees
Court of Appeal holds that Association wrongfully interpreted CC&Rs in denying cabana construction, and owners may obtain attorney fees incurred in pre-litigation alternative dispute resolution.
by Peter E. Soskin, Esq.
In Grossman v. Park Fort Washington Association, 2012 WL 6619991, a partially published opinion, the Court of Appeal affirmed a trial court's decision overturning an Association's denial of an owners' application to build a backyard cabana. The Association had denied the application because the owners failed to seek Architectural Committee approval until after commencing construction. The Court ruled that because the architectural guidelines were ambiguous, they must be interpreted in favor of the owners. It also concluded that boards do not have discretion to interpret the governing documents where those documents do not grant such discretion. Additionally, the Court found that the Association's decision was arbitrary and capricious based on three key factors:
  1. No one from the Architectural Committee visited the site until after initially deciding to remove the cabana and well into the alternative dispute resolution (ADR) process;
  2. The Board denied the owners' appeal during the ADR process, violating the spirit of the Davis-Stirling Act; and
  3. The Board partially based its decision on the owners' failure to secure the Architectural Committee's prior approval.
The lesson for associations and managers is this: A board may only interpret terms in the governing documents that it has been expressly permitted to interpret. But even then, a court may overturn decisions that it finds to be arbitrary.
Finally, in the only published portion of the opinion, the Court concluded that the Davis-Stirling Act specifically Civil Code section 1354 allows the prevailing party to recover reasonable attorney fees expended in pre-litigation dispute resolution. Thus, boards and managers should be aware that even if litigation has not been filed, an association may be liable for attorney fees and costs incurred by an owner during alternative dispute resolution proceedings.
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