Question: I own two condos as rentals. I’ve been a member of the board of directors for one of the condo complexes, and I have always thought that nonresident owners have the same rights as resident owners.
Now, one of the condo board of directors is planning to implement a rule that resident owners can have pets, but nonresident owners (and their tenants) can’t.
I think that’s unfair. Can they get away with it? How can I challenge the rule?
Answer: First, you have to check the Condominium Declarations that were filed with the county when the project was first sold. Sometimes the declarations will have specific rules regarding pets; others simply say that pets are subject to the rules and regulations adopted by the condo’s board of directors.
Real estate attorneys I’ve talked with say the courts generally favor the least restrictive rules possible to permit peaceful communal living.
Under the general principles of condo law, it is illegal to discriminate against a class of owners. In other words, nonresident owners and the tenants who occupy their condos have the same rights as the condo owners who reside in their own units.
I don’t know of any Washington cases similar to yours, but a few years ago a New Jersey court held that a nonresident condominium owner had the same right to an assigned parking space as a resident owner.
The basic guidelines courts follow in analyzing cases involving condo homeowner’s association rules are:
1. What kind of authority for the rule exists in the condo declarations?
2. Is the rule reasonable?
For example, some courts have held that condo rules banning all pets are unreasonable. Condo homeowner associations may be allowed to pass rules regulating pet behavior and pet owner responsibility to promote a clean, quiet environment, but some courts have ruled that a total ban on ownership of pets would be too restrictive to be “reasonable.”
For example, a tropical fish tank does not create the same kind of nuisance to neighboring condo owners as a cat or dog. Therefore, it could not be reasonably argued that fish tank ownership should be banned.
On the other hand, some court cases have upheld pet prohibitions when they were specifically included in the condominium declarations. The key difference is that declarations are restrictive “covenants” that run with the property, while association rules are subject to change by a vote of the board of directors.
When you buy a condo, you are purchasing the property subject to the covenants. You are implicitly agreeing to the terms of a private contract, and if the declarations state that you cannot have any pets, you know that when you buy the unit.
Therefore, courts will allow more restrictive regulations in the declarations and covenants than would otherwise be allowed in homeowner’s association rules.
If you can’t stop your condominium association’s board of directors from banning pets in nonresident owner units through “political pressure,” your only recourse would be to file a court action for a “Declaratory Judgment” asking for an injunction to prevent enforcement of the rule.
If you need to amend the condominium declarations, that typically requires approval by 60 percent to 75 percent of the condominium owners, depending on the vote requirement spelled out in the condominium’s bylaws.
Hopefully, you will not have to resort to such drastic action.
I understand the board of director’s motives. They are doing what they think is best to protect property values for every owner in the condominium complex, including you.
Frankly, I think you are better off not allowing pets in a rental condominium because of the potential damage to your unit. However, I also understand that pets are “part of the family” and your potential tenants would be not be happy if they were forced to give up their pets while their neighbors were allowed to keep their animals just because they happened to be owners rather than renters.
Steve Tytler is a licensed real estate broker and owner of Best Mortgage. You can email him at features@heraldnet.com.
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