Many pet owners who have breached the pet restrictions in their condominium documents will go to great lengths to keep their pet when the condominium corporation takes steps to enforce these restrictions. In California one pet owner went to the California Court of Appeal (The Villas in Whispering Palms v. Tempkin) in an effort to keep a second dog in a condominium that only permitted one dog.
There had always been a one-dog restriction in this condominium, although this restriction was not always enforced in the past. In 2003, after becoming aware that a number of owners had a second dog, the condominium association decided to grandfather those owners with 2 dogs – once the second dog died or moved out of the unit, the owner would not be allowed to replace that pet. In 2005, four additional owners with two dogs were grandfathered, with a further condition that one of the dogs was to be removed if the association received three complaints about the dogs within a year. At that time, the board also canvassed the unit owners to determine if the two-dog restriction should be dropped. As the majority of the owners voted to keep the one-dog restriction, the board notified all owners that moving forward, all owners were expected to comply with the one-dog restriction and no further grandfathering concessions would be given. Thereafter, the board was consistent in enforcing the restriction.
In 2010, Mr. Tempkin moved in with one dog and subsequently got a second dog. When the condominium association tried to enforce the one-dog restriction, Mr. Tempkin argued that he was entitled to be grandfathered on the same conditions as had been granted to other owners in the past. He further argued that the board’s refusal to do so was arbitrary and capricious and he had been treated unfairly and differently from the way that other owners had been treated.
After losing at the trial level, Mr. Tempkin also lost the appeal. The Court of Appeal determined that the fact that the association did not strictly enforce the one-dog restriction in the past was not a relinquishment of its right to now enforce it. “In the face of years of past and uncorrected violations, the decision to strictly enforce the pet restriction was a reasonable and informed decision of the board entitled to judicial deference.” The Court of Appeal also concurred with the trial court’s findings that there was no evidence of selective enforcement by the board after 2005.
This case illustrates how a condominium corporation can take steps to enforce a provision in the condominium documents that have not been enforced in the past:
- grandfather those owners currently in violation by entering into a grandfathering agreement that clearly sets out the terms and conditions of the grandfathering arrangements
- send clear written communications to owners that further violations will not be grandfathered or tolerated
- thereafter consistently enforce the condominium documents against all owners and residents
Boards should also consider surveying the unit owners to determine if there is any appetite for change in the community. Depending on the circumstances, it may be preferable to change a rule rather than move forward to strictly enforce a rule that is being violated on a frequent basis.
This case also illustrates how important it is for condominium residents with pets to do their homework: pet owners should carefully review the condominium documents before committing to buy or lease a condominium unit and condominium residents should do the same before acquiring a pet or an additional pet. The time and effort spent before making these big decisions will avoid costly and time-consuming litigation that may not have a desirable outcome for the pet owner.
