Recently bought a condo, and saw in the HOA had a 35lb weight restriction on dogs, however, when prior to purchasing the condo, the previous owners said the HOA never told them we wouldn't be allowed to have our dog, and we just assumed it was ok. Then we got a violation letter the day we walked into the condo with the dog, saying we were told if we bought the condo we were not allowed to have our dog. We never got anything in writing or verbally told to the prior owners or us saying that before purchasing the place, otherwise we wouldn't have bought the condo. In a case like this, would the California Civil Code Section 1360.5 help? Or what can we do to fight the weight restriction, because we are not willing to get rid of our dog.
Belonging to the HOA is a condition of purchasing the condo. The HOA's Rules and Regulations should have been provided to you and, apparently were: "saw in the HOA had a 35lb weight restriction on dogs."
In short, you entered into a contract with private party knowing - and being responsible for knowing - the terms of that contract, including the R&Rs. Unless you can show that the dog is an assistance animal and exempt under the ADA or equivalent, you appear to have no grounds to challenge the rules being applied to you.
I suggest you review the R&R with a qualified attorney. The CA Bar Assoc. can assist you with referrals.
The foregoing is for general information purposes and does not establish an attorney-client relationship.
While condos must allow owners to have one pet, that right is SUBJECT TO REASONABLE RULE AND REGULATIONS of the HOA. Limiting the types and sizes of dogs that are allowed has been found to be reasonable. So, no, I don't think Section 1360.5 will be of help to you.
In signing all the documents that were required before the close of the sale on your condo, you most certainly agreed, in writing, to be bound by the CC&Rs. The fact that you did not read the CC&Rs before buying your condo (or read them, but signed anyway) is extremely unfortunate. The fact that no one told you that your dog would be a problem is again, unfortunate, but it was your responsibility (not the responsibility of others) to know what restrictions in the CC&Rs might cause a problem for you -- before your signed the sale documents.
Unless your dog is a service dog or is otherwise needed to help with a health problem, etc., OR you find that other dogs weighing over 35 lbs. have been tolerated after the adoption of the relevant rules, I don't know how you can fight this.
Any answer or other information posted above is general in nature and is not intended, nor should it be construed, as legal advice. This posting does not create an attorney-client relationship between you and the posting attorney, and you are urged to engage a qualified attorney who is licensed to practice in the relevant jurisdiction.
Your HOA can place reasonable restrictions on the weight of your dog, if the CC&Rs so state.
As you may know, any governing documents (such as CC&Rs) modified after January 1, 2001 must allow pets. California Civil Code section 1360.5(a)&(e) provides:
"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 . . . This section shall become operative on January 1, 2001, and shall . . . apply to governing documents entered into, amended, or otherwise modified on or after that date. "
The preliminary question is, were your HOA's CC&Rs amended after January 1, 2001? If not, Section 1360.5 would not even apply.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
Although I always advise community association clients to avoid weight limits both because they are hard to enforce (dogs gain and lose weight over time) and because the problems dogs cause often do not vary with weight. Some small dogs urinate and bite; some large dogs are well behaved and quiet. However, the case law around the country is that a Board can impose restrictions on pets and that a weight limit is an enforceable restriction. As others have pointed out, if you were advised of the rule before you bought, you cannot expect that it will not be enforced against you. You can either remove the pet or move to another home. Otherwise, you can expect the association to begin enforcement actions against you which you will not be able to defend.
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