DouglasT2
(California)
Posts:3
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| 07/10/2008 12:40 PM |
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Our CC&R’s clearly state that our complex is “pet restricted” (no dogs) but that pet owners can and must obtain approval for keeping a pet in their unit. This is fine and makes sense. However, we just received a letter with the “New Pet Rules” that is requiring each existing pet owner to register their pet with the Association, subject to a $25 registration fee. I have no problem registering our cat, but I have read through our CC&R’s, By-Laws, and Association Owner’s Manual, and nowhere do I find any verbiage whatsoever on this $25 registration fee. Additionally, the “New Pet Rules” states a daily fine of $100 will occur for any individual who fails to register their pet. Again, this daily fine cannot be located anywhere in our CC&R’s, By-Laws, and Association Owner’s Manual. The Violation Procedure and Penalty Schedule in our rules states that rule violations are subject to a $50 fine, but there is a long list of due process procedures that must be followed.
I have no problem registering our cat, but I just do not feel this $25 registration fee is fair, just, or even allowed. Also, it does not seem proper to have the BOD just “make up” these new rules and penalty amounts. Shouldn’t new rules and penalty fees such as this require homeowner vote and approval? Am I right? Wrong? Way off? Please help!!!!
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GlenL
(Ohio)
Posts:1377
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| 07/10/2008 12:56 PM |
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Douglas pay the fee first, they can refund it to you if the BOD is in the wrong but you don't want to rack up hefty fines if they're in the right.
I believe CA made it illegal to ban pets and there are strict procedures in the Davis Stirling law to handle rule changes and fees including notification. If they followed all of them then it possibly is a valid rule and fee. You can research it by visiting http://www.davis-stirling.com/index.html and check "Main Index" for Pets, Rules and Fees. You can then ask the BOD for proof that they followed all the requirements of the law.
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DouglasT2
(California)
Posts:3
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| 07/10/2008 1:27 PM |
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Thanks Glen. I've reviewed the Davis-Stirling Act several times; the "no pet restriction" only applies to governing documents implemented after 1/1/01, ours were put in place in 1979.
I found some stuff, but I'm still not sure. The main problem is our BOD has been the same for at least the past 12+ years with the same management company. I've tried several times to get them to do things the proper way, but then they send threatening letters to me from their attorney. For example, the BOD president gets a second parking space free while homeowners wanting an extra space have to pay a monthly fee. Anyway, I'm not even sure if it's worth fighting, since we'll be moving in 2-3 years and its only $25, but it’s the principle.
I did find the 30-Day review policy on adopting and amending operating rules (which they did not appear to follow). Maybe I can just copy and paste all that stuff and put it into a letter stating I’m paying the fee, but paying it under protest.
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BrianB
(California)
Posts:1742
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| 07/10/2008 1:46 PM |
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Posted By DouglasT2 on 07/10/2008 1:27 PM
I did find the 30-Day review policy on adopting and amending operating rules (which they did not appear to follow). Maybe I can just copy and paste all that stuff and put it into a letter stating I’m paying the fee, but paying it under protest.
that's a good, solid defendable start. pay the fee, lodge your protest, and explain why you are protesting, what the board did wrong, etc. I would also request, in the same letter, an answer to the "charge" in 30 days. you may not get it, but it does put some burden on the board to explain themselves. should they ignore it, that adds to your case, should you ever go to court.
also, the president should NOT get a free space that everyone else pays for. that smacks very close of a pay for performance role, and that is almost always illegal in HOA's. |
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DouglasT2
(California)
Posts:3
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| 07/10/2008 1:51 PM |
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| Thanks again. On a side note, the association's attorney sent me a letter stating the parking space was okay and not considered compensation or a perk. There are several other things, like the BOD president also owning a "handy man" business and doing most of the work around the complex. I tried so hard to get people involved and to get on the board to make things right, but nobody wanted to help out, so i just quit. Thanks for the advise. |
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BrianB
(California)
Posts:1742
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| 07/10/2008 1:57 PM |
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Posted By DouglasT2 on 07/10/2008 1:51 PM
Thanks again. On a side note, the association's attorney sent me a letter stating the parking space was okay and not considered compensation or a perk.
if it isn't a compensation or perk, what is it? If it isn't a perk, then i would say the president should have NO problem giving it to some other homeowner, right? after all, the attorney just said, in writing, that it had no value or benefit, so why would the president care if it went to someone else?
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EllenS1
(Florida)
Posts:353
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| 07/10/2008 4:15 PM |
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Douglas,
It sure sounds like you need a new board but where to find one? Unfortunately most owners don't want to get involved until it affects them. Is the association attorney a relative of the pres? A housecleaning is in order after 12 years but as you said owners don't want to help. |
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JaneK
(California)
Posts:175
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| 07/10/2008 9:43 PM |
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I tried so hard to get people involved and to get on the board to make things right, but nobody wanted to help out, so i just quit. Thanks for the advise.
Same here, same all over. I, too quit.
Jane |
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BradP
(Kansas)
Posts:1742
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| 07/11/2008 6:29 AM |
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Douglas:
The free space is a perk...blind man could see that one. If it costs everyone else to have it and the president gets it for free it is a perk.
As for the dog, the advice above is great, pay the fee but I would also attach a letter explaining that you paying in protest and ask for their explanation. They can make up rules for common areas, but unless you documents give them the power they can not arbitrarily make up registration fees and such.
Sounds like a good ole boy system...to me it is time for new blood on your board. |
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JaneK
(California)
Posts:175
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| 07/11/2008 6:37 PM |
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Regarding extra parking spaces. Are the spaces given common property? CA law required that any common property given away or given for exclusive use is to be voted on by the members in accordance with CA CC 1363.03. Just like an election for directors or a special assessment. I don’t believe not-for-profit corps can charge a fee for a parking space or cats. You can probably fight this in small claims court. But the above advice is good, pay first, then fight.
Check Beth Grimm’s site (an HOATalk sponsor, home page) and the
Center for California Homeowner Association Law, http://www.cahomelaw.org/
for information on going to small claims. You can also email questions to CCAL.
If you don't already know, the 30 day review law is CC 1357.100 etc.
Yep, that parking space is a perk, and not allowed.
Jane
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KathleenH2
(Ohio)
Posts:4
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| 07/11/2008 8:04 PM |
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My problem is that our board has refused to enforce the 1 dog up to 25 lb pet restriction. That was 1 of the things I liked about this complex as I previously lived in a condo complex that allowed big dogs and the barking, etc drove me crazy. How can I get them to enforce the declaration and bylaws protecting me from living near owners with more than 1 dog and bigger than 25 lb.? I have a 9 lb dog and follow the rules.
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EllenS1
(Florida)
Posts:353
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| 07/11/2008 8:58 PM |
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Kathlee,
Check your docs. Ours state that any pet that causes a nuisance must be removed. I disagree, however, that big dogs bark a lot. I had a 74 pund dog for almost 15 years and he very seldom barked while I listened to several little dogs yapping constantly. |
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GlenL
(Ohio)
Posts:1377
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| 07/11/2008 9:25 PM |
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Posted By KathleenH2 on 07/11/2008 8:04 PM
My problem is that our board has refused to enforce the 1 dog up to 25 lb pet restriction. That was 1 of the things I liked about this complex as I previously lived in a condo complex that allowed big dogs and the barking, etc drove me crazy. How can I get them to enforce the declaration and bylaws protecting me from living near owners with more than 1 dog and bigger than 25 lb.? I have a 9 lb dog and follow the rules.
Kathleen I'm assuming that you are in a condominium complex and that you have complained to the BOD and that they have not enforced the Declarations. First how do you know the weight of the other dogs unless they're St. Bernard's? If these animals are causing a disturbance, I would try contacting your local animal control for enforcement. They will not enforce the CC&R's but it is against the law in most urban jurisdictions to allow a dog to continually bark.
If all this fails and you truly want the animals gone and are willing to face everyone's wrath and condemnation; then you as a unit owner can bring suit against the offenders under 5311.19(A) and recover your legal fees to do so or under 5311.20 could sue the BOD for their failure to enforce the CC&R's. You might also remind them that if you sue the BOD for willfully failing to enforce the CC&R's their D&O insurance may not pay for their defense or any judgment against them or the HOA. (Note if you're not in a condominium 5311 doesn't apply) This is not meant to be legal advice just my take on the statutes.
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RobertR1
(South Carolina)
Posts:2154
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| 07/12/2008 1:49 AM |
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Glen and Kathleen,
To summurise I think we can agree Kathleen having a dog has nothing to do with a owner not conforming to legal restriction. Kathleen is not charged with enforcement, the Board is. And if she goes to every annual meeting from now until she proves her point, she should do it. Go to the Board meeting, present your concern in writing, in you letter ask for a prompt response to your concern and request it be made part of the Minutes of the meetings. Go to next Board meeting and with each new letter, remind the board that this is your tenth or whatever call for corrective action under the binding clause in your documents. I would include the name of each Board member in each letter and at some point either you give up and sue them with your evidence or the Board gives up and solves their problem. Don't fight about it, argue or try to compromise, it is what it is, let it go at that.
If I felt strong enough, I would do that and I bet you receive some satisfaction. Also, each month encourage the Board to explain their actions or non actions to you in writing, do that each time also.
After you get tired and before hiring an attorney, try legal aid or all kinds of County offices, city offices, and see what they have to say. |
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BrianB
(California)
Posts:1742
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| 07/12/2008 8:31 AM |
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Posted By KathleenH2 on 07/11/2008 8:04 PM
My problem is that our board has refused to enforce the 1 dog up to 25 lb pet restriction. That was 1 of the things I liked about this complex as I previously lived in a condo complex that allowed big dogs and the barking, etc drove me crazy. How can I get them to enforce the declaration and bylaws protecting me from living near owners with more than 1 dog and bigger than 25 lb.? I have a 9 lb dog and follow the rules.
another great example of assumptions making for bad rules. If anyone has links to any double blind, twice verified studies that show that dogs 24 pounds and under bark less than dogs 26 pounds and over, please provide them. Otherwise, i tend to stick with my anecdotal and admittedly biased conclusion that it isn't the mass of the dog, it's the owner that allows the problem to exist. |
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JohnK3
(Pennsylvania)
Posts:463
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| 07/12/2008 12:05 PM |
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Brian,
I'd suggest the following formula:
DL divided by PDW plus MY/H equals AL.
Or, to put it another way:
Decibel Level divided by Pounds of Dog Weight plus Minutes yapping per Hour equals Annoyance Level.
An AL greater than 20 = BAD.
An AL less than 20 = GOOD.
Case #1:
10lb Poodle at 120 decibels for 30 mins = 42
Case #2:
80lb German Shep at 100 decibels for 10 mins = 11.25
Just saying.
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RobertR1
(South Carolina)
Posts:2154
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| 07/12/2008 2:51 PM |
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JohnK,
I am not sure about the quality of your facts but support your no nosense conclusions. All Boards and regime could cut to the chase if they rendered Royal Decisions that way.
Blah , Blah, Blah Blah= Good.
Blah, blsh, blah blah= Bad.
Move on. |
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KathleenH2
(Ohio)
Posts:4
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| 07/12/2008 4:55 PM |
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| Robert - thank you for your comments. My self and several others have small dogs but 3-4 have dogs that are obviously bigger than 25lbs - including a Board Member. I like your advice and will try it. |
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DonnaS
(Tennessee)
Posts:2841
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| 07/13/2008 7:50 AM |
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Kathleen,
I have posted this before. A Giant Great Dane at 150 pounds is much more quiet that a 10 pound Yorkie which yips at their own shadow. Poundage is not a good reference point for enforcement.
My friend has a big Westie at almost 30 pounds and I have a sweet female at 18 pounds. So now what? No Westies? You cannot allow my 18 pounder and my friends 30 pounder cannot be here. What my point is is that the weight thing is unenforceable. Listing of breeds is also impossible because of all of the cross breeding and mutts. Either allow or disallow dogs. |
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JohnK3
(Pennsylvania)
Posts:463
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| 07/13/2008 10:31 AM |
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The point of my admitedly ridiculous formula is that the bottom-line of any weight/breed restriction is just plain dumb. A close second is defining what constitutes a dog barking nuisance. But as Justice...Justice...was it Powell?...stated in yet another dishy attempt to define pornography - "I know it when I see it."
Case by case decisions can be a nasty can of worms to open, but I think they are the only viable solution in this realm of Board enforcment.
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GlenL
(Ohio)
Posts:1377
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| 07/13/2008 10:50 AM |
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| Excessive barking is covered in most CC&R's under the nuisance clause and by the laws of most jurisdictions. Our BOD is wrestling with the size limit question now not because of the barking issue but the other noise issue. When you're living below someone it makes a difference if it's an 18 or 30 pound dog running around in your upstairs neighbor's unit and a 150 pound Great Dane. Now floor covering obviously affects the amount of noise transferred but even thickly padded carpet doesn't stop it all. I know this because while my upstairs neighbor doesn't have a dog, they have something much worse; a granddaughter who visits and she weighs considerably less than a Great Dane. |
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JohnK3
(Pennsylvania)
Posts:463
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| 07/13/2008 11:02 AM |
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Glen,
How is "excessive" defined in these CCRs?
If no definition, we're back to subjective judgment calls, eh? |
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DonnaS
(Tennessee)
Posts:2841
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| 07/13/2008 11:05 AM |
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Glen,
Just to clarify one small point. Great Danes do not run. Their worst damage to any living space is denting the corner beading on drywall with their tails a waggin.
I agree with your point and that is what I guess this post has turned to saying. That it is not a dog or a toy or a kid that should be dissallowed because of their potential for noise. It is the noise itself that needs to be controlled. ( I had 2 Danes but you would not know of their presence) |
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JohnK3
(Pennsylvania)
Posts:463
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| 07/13/2008 12:09 PM |
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We have one Great Dane (Sasha, a female, about 125 lbs.) in our neighborhood. Owners have one of those electric fences. When I have our randomly bred animal companion - a 75 lb. Shep/Aus Cattle dog, Taxi - out for his morning walk, and Sasha is in the yard, Sasha will bark a couple times then lay (lie?) down, envious of seeing another dog being walked, which Sasha never is.
Sometimes, we also encounter Boopsie, a 12 lb. "designer" runt, who does occassionally get strolled, that howls as if she's having her tail cut off with a pair of dull scissors, and continues to do so long after we've passed. Shrieks incessently might be a better verb/adverb combo.
I vote Sasha. |
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RobertR1
(South Carolina)
Posts:2154
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| 07/13/2008 12:43 PM |
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Holy cow JohnK, Now we are going to start sanctioning Talen or no talent shows for our pets to allow them to gain admission as members of the immediate family, hence, considered owners.
Now, my 10 year old orange tabby doesn't consider this an issue. She is perfect, she refuses to enter into the fray. She alone will decide who goes and stays in my house. Got a problem with that? Let me get the door for you. |
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RobertR1
(South Carolina)
Posts:2154
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| 07/13/2008 12:43 PM |
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Holy cow JohnK, Now we are going to start sanctioning Talen or no talent shows for our pets to allow them to gain admission as members of the immediate family, hence, considered owners.
Now, my 10 year old orange tabby doesn't consider this an issue. She is perfect, she refuses to enter into the fray. She alone will decide who goes and stays in my house. Got a problem with that? Let me get the door for you. |
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GlenL
(Ohio)
Posts:1377
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| 07/13/2008 1:10 PM |
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John the CC&R just states: Any such pet causing or creating a nuisance or unreasonable disturbance shall be permanently removed from the property subject to these restrictions upon seven (7) days written notice from the Board of Trustees of the Association. (After a hearing by the BOD)
Which I'll admit is subjective however if someone complains and provides proof such as a video/audio recording of the offending animal where it is continually barking it makes it easier. But the Township I live in has passed a barking dog resolution and the Police will enforce it, all you have to do is call them. Their ticket beats a fine from the HOA and if the dog in question is not licensed then there is an additional fine for that and the dog warden can impound the dog.
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EllenS1
(Florida)
Posts:353
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| 07/13/2008 1:52 PM |
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| I moved into a small condo which did not allow dogs but the seller got them to allow him. I'm sure they thought this old lady would have a little, tiny pet. Instead I moved in with a 70 plus pound lab mix. Everyone ended up loving him. Every time I had him out on the proprty one owner (80 plus years) sitting on his balcony would remark "he's a good dog isn't he?..he never barks." Judge the behavior and not the size. |
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DonnaS
(Tennessee)
Posts:2841
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| 07/13/2008 2:43 PM |
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AMEN!! |
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KathleenH2
(Ohio)
Posts:4
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| 07/13/2008 5:38 PM |
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| Hey folks - I am not disputing that a small dog can bark and be a bigger nuissance than a big dog - but our condo does have a 1 dog up to 25 lb. weight limit. It is not just a rule but in the declarations and bylaws which makes it - in my opinion a deed restriction. It causes a problem because people who obey the declaration retriction ask - how come they can have a big dog or more than 1 dog and what do you tell a potential buyer?? If the declaration retriction is there - then you have to tell them unless you lie and some have but there is resentment and yes - the people who have the big dogs also do not follow the rules about not tying your dog out so they do and then then bark and bark. Me - who complains is the "bad neighbor" not those who defy the deed restriction and then break the rules about tying their dog outside. Last year I and my dog were attacked by a neighbors dog who came up on my patio after my dog. The Board did nothing!! They had a hearing and wanted to hear both sides of the story -- about a dog that should not have been on the property in the first place. But the bleeding hearts whent to the big dog owner because they didn't want to cause her the pain of getting rid of her dog - never mind that her dog 60+ lb dog had not only attacked my 9 lb dog and the week before - had chased me in our parking lot - the dog was off her leash and she came at me with teeth bare and her hair raised. Her owner just smiled and said "sorry". So I have had it. I want those dogs gone!!! It is not vindictive but we live too close to one another and it is not just a rule - but in our declarations and bylaws which the board is ignoring. |
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