The Neighbor with Four Barking Dogs
July 9, 2019
Partner, Jaburg | Wilk Attorneys at Law
The reason that many people want to live in a community that is governed by “Codes, Covenants and Restrictions” (“CC&R’s) is to have the peace-of-mind that comes with knowing that everybody in the community is “playing by the same rules.” But are there exceptions to those rules, where a Homeowner’s Association that is tasked with enforcing the rules is legally restricted from doing so?
Say, for example, the CC&R’s include a not-uncommon restriction against having more than two dogs living on a lot, and also states that “all pets shall be trained and kept so as to not become a nuisance to neighboring lot owners.” Can a disabled homeowner, who has four “service animal” dogs, defy the two- dog restriction in the CC&R’s because of the protection afforded to all by the Federal Fair Housing Act (“FHA”)? Under the FHA, the Association is generally required to “make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” Reasonable Accommodations Under the Fair Housing Act, Joint Statement of the Department of Housing and Urban Development and the Department of Justice.”
There are two issues presented by this situation. The first is whether the homeowner with the service animal dogs can violate the CC&R’s restriction on the number of dogs allowed, by having more than two dogs. The second is whether said homeowner can violate the CC&R’s requirement that all pets must be kept so as to not be a nuisance to neighboring lot owners. As to the first issue regarding the number of dogs, the answer is “maybe,” depending on the circumstances. First, the homeowner needs to make a request to the Association for a “reasonable accommodation,” and in doing so must provide evidence of their qualifying disability, and that the accommodation requested is reasonably necessary to afford them an equal opportunity (equal to those without such disability) to use and enjoy their dwelling. In particular, the request must show an identifiable relationship, or “nexus,” between the accommodation requested and the individual’s disability. In this instance, there would need to be a showing as to why having four dogs, as opposed to only two or even three dogs, is reasonably necessary in light of the person’s disability.
As to the second issue regarding the nuisance created by the barking of the dogs regardless of the number of dogs being kept, and regardless of the homeowner’s disability, the homeowner is still required to comply with the requirement in the CC&R’s that the dogs be kept so as to not be a nuisance, which in this instance means that the homeowner must ensure that the dogs’ barking is controlled. Should the homeowner fail to do so, they can be subject to enforcement action by the Association.