No Flat Prohibitions
In 1994, the California Supreme Court upheld the validity of a CC&R restriction that broadly prohibited homeowners from having pets in their units. (See Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361.) Several years after that decision, the California Legislature enacted Civil Code Section 1360.5 (now Civil Code Section 4715) to afford homeowners within associations the limited right to keep and maintain at least one (1) pet.  However, as written, Section 4715 does not affect the validity of a pet prohibition contained in an association’s governing documents that has not been “entered into, amended, or otherwise modified” on or after January 1, 2001. (Civ. Code § 4715(e).) This created an ambiguity as to whether Section 4715 applies only to situations where the specific governing document containing the pet prohibition (i.e., the CC&Rs) was amended after 2001, or whether Section 4715 would apply if any governing document of the association was amended or modified after 2001 (i.e., the bylaws, operating rules, etc.).

This ambiguity became especially significant upon the adoption of Civil Code Section 1363.03 (now Civil Code Section 5105) in 2006 that required all associations to adopt election rules. Because election rules are “operating rules” within the meaning of Civil Code Section 4355, they constitute a component of the association’s governing documents for the purposes of Section 4715. (Civ. Code  § 4715(d).) Thus, there was a concern that Section 1363.03 (now Section 5105) requiring associations to adopt election rules served to effectively nullify any existing pet prohibitions.

To address this concern, in 2007, Senator Kuehl requested that the California Office of Legislative Counsel (COLC) review this ambiguity and provide some guidance. On July 19, 2007, COLC rendered an opinion that the adoption of election rules pursuant to Section 1363.03 would indeed void pet prohibitions contained in other provisions of an association’s governing documents. The COLC opinion states in pertinent part that:

“…it is our opinion that, under Section 1363.05 of the Civil Code, 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.”

While the COLC opinion does not have the weight of law or legal precedent, it does illustrate how courts may interpret Section 4715 moving forward. The HOA industry took notice of the COLC opinion, and the general consensus among HOA attorneys is that flat prohibitions on pets are no longer enforceable.

Reasonable Restrictions Permitted
The rights afforded to homeowners under Section 4715 are “subject to reasonable rules and regulations of the association.” (Civ. Code § 4715(a).) Rules and regulations utilized by associations in this respect typically include restrictions on the type of breed, size (weight), and number of pets that a homeowner may have.  Additionally, associations often enact operating rules that regulate pets entering into the association’s common areas (i.e., rules requiring pets to be leashed when in common area streets, parks, hallways, etc.).

Companion & Service Animals
An association’s authority to regulate and restrict pets is also subject to Federal and State laws prohibiting discrimination against persons with disabilities. Those laws may require an association in particular circumstances to exempt a disabled owner’s pet from having to comply with the association’s otherwise reasonable pet restrictions.

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