Q: Can the board adopt a rule that prohibits renters, but not owners, from having pets?

A:  This is a common question, particularly with condominium projects in the mountain resort areas. Many tenants in mountain communities rent on a short-term basis, and there is the perception that short-term four-legged guests cause more damage, create more havoc, and are more of a nuisance than owners’ pets.  Whether or not this perception is a reality, the ultimate question is whether you can treat renters differently than owners when it comes to having pets. Before answering that question, let’s first address the question of whether a no-dog rule, as opposed to a no-dog covenant contained in the declaration, is even enforceable.

Although a board has broad rule-making authority, this authority likely would not extend to imposing a ban on dogs.  The governing documents exist within a general hierarchy of authority for operating community associations.  Rules, which are lower on this hierarchy scale, may not contradict or be inconsistent with the legal sources that take precedence over them, such as the declaration (i.e., covenants).  Therefore, your first step in determining whether you can ban dogs by rule is to check whether the declaration permits them. If your declaration expressly permits pets (without an exclusion for dogs), a board cannot adopt a rule banning dogs because this would contradict what is permitted in the declaration.

But what if your declaration is silent or ambiguous with regard to whether pets are allowed?  When faced with an unclear covenant, courts tend to resolve all doubts against the restriction and in favor of free and unrestricted use of property. Unless the declaration clearly prohibits a particular use, there’s a general inference that the particular use, such as keeping a pet in a unit, is allowed.  As the Association would not be deemed to have authority to adopt this rule, a board should not attempt to ban dogs by rule.

Additionally, Colorado law indicates that, at least with respect to post-CCIOA communities (i.e., communities created on or after July 1, 1992) that the declaration must contain any restrictions on the use, occupancy, and alienation of the units.  Therefore, as a ban on dogs is a restriction on the owner’s right to keep a pet in his or her unit, any such ban should be included in your declaration.

Given the above, in most cases the board will not have authority to adopt a rule banning pets, unless such ban is authorized by the declaration.  This response is equally applicable to the question of whether the board has authority to adopt a rule banning only renters from having pets.  If the declaration is silent, ambiguous or expressly permits pets, then the board’s rule banning tenants from keeping pets will be unenforceable.

If an association wants to ban renters from keeping pets, it will need to do so by amending the declaration. This requires owner approval and, in some cases, mortgagee approval if the declaration so requires.  Another item to consider is how the association can enforce this restriction.  While renters do not receive any protected status as a class, this provision could have a discretionary affect which may be subject to challenge.

Finally, rather than banning only renters from having pets, you should consider either amending the declaration to allow for supplemental assessments to be levied against pet owners, or simply budgeting for pet maintenance costs. The ultimate goal for many boards who want to ban pets may be, simply, to control the increased costs of pet maintenance.  This can be done by allocating pet maintenance costs to pet owners (whether they, or their renters, keep pets), without banning pets altogether.

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