Condo owner’s dog outgrows HOA restrictions, could be banned

Q: I bought a condominium that I have lived in since May 2002, and made a great investment. In January 2006, I found my dream dog, a border collie. The love that I have for my dog is overwhelming and he has a better social life than I do.

Our condominium community covenants state that each unit can have up to two 25-pound dogs and that no pet can exceed 25 pounds. When I first purchased my dog he was under the weight restrictions, but now he weighs more than 25 pounds.

No one has ever complained about my dog. He is very friendly and I keep him on a leash. I clean up after him. He does not bark when I am gone and I have never tried to hide the fact that I own him.

It has been two years since he has exceeded the weight restriction. Someone called the management company and complained about the size of the dog.

The management company has sent me a letter that I have to either remove the dog or be fined $100 per week. Everyone that I talked to that was either on the board or lives here says that he was "grandfathered in" along with other large dogs that have been here at the community.

I have three questions for you:

1. Is there a way to amend the covenants through petitioning the residents and putting the weight limit to a vote on a per dog basis; i.e., temperament and owner responsibilities?

2. Is there a way to get them off my back long enough to sell my property for a decent amount of money without being penalized for such an outrageous amount?

3. Can a dog be "grandfathered in" through the previous board members who saw the dog and allowed him to stay?

A: Let's take the first question. In order to petition the board to place this proposed amendment to the homeowners, it would require the signatures of 10 percent of the homeowners, or a lower percentage if specified in your association's governing documents.

You should be very explicit as to the purpose of the petition and you should have the proposed pet amendment written and included in the petition.

Amending covenants is not an easy process and you are probably doomed before you even start the petition process since so many homeowners do not vote and you would most likely not be able to obtain the needed votes.

You would almost have to "politic" with the homeowners who reside at the community as well as those who live off-site, sending them letters and knocking on doors asking them for their support. In addition, the proposed amendment has to be uncomplicated.

For you to add words based upon temperament and responsibilities makes the proposed amendment very subjective. Temperament and responsibilities are probably written to some extent in your association rules and regulations. Finally, what weight limit would you establish?

As far as your second question, you certainly can ask for a hearing (you should have already been noticed as a hearing is required before the board can actually assess your account with fines) and ask for an extension.

The board will probably not give you an extension based upon the sale of your home. You will probably have to find a friend to keep your dog until you sell your home.

Do not be surprised if other associations have the same weight restrictions, so you will need to carefully review their governing documents.

Finally, to address the "grandfathered dog" issue, you mentioned there were other large dogs within the community. You need to review the covenants to see when the weight restriction first was passed.

If it was passed after you purchased your dog, then you have a good legal position for dog remaining in the community.

If it predated the purchase of the dog, then the association really has no choice but to enforce the regulations upon you and any other owner whose dog weighs more than 25 pounds.

To be grandfathered into the association would have required a time line and specific language in the pet restriction section of the covenant, which stated that dogs purchased before a specific date were exempt from the restrictions.

The fact that board members saw the dog and decided not to take any action does not negate the covenants. Although each and every board should be consistent in enforcing its governing documents, we know that some boards are more lenient then others.

The reader could fight the issue based upon the lack of enforcement, but that again would take time and money to submit this issue to the state's ombudsman office for arbitration and could very well be a losing cause.

Regardless of whether a dog is a threat and regardless of whether the dog's owner is a responsible pet owner, the covenants have a restriction and it is the responsibility of the homeowner to review restrictions before they take any action which subsequently results in the assessment of fines against their account.

Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. She is a member of the Institute of Real Estate Management. Questions may be sent to Association Q. & A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759. Questions may be shortened and are subject to editing.