October 11th, 2008

As seen in The Arizona Republic
by: Clint Goodman

Question:  My homeowners association recently passed a rule that prohibits us from having pets, including common household pets like indoor cats, fish and birds.  Do I really have to get rid of my fish tank?

Answer:  Should an HOA be able to stop me from buying my 3-year-old daughter a goldfish for Christmas?  Should it be able to demand that your grandmother part with beloved “Fluffy,” her only companion since grandpa died?  The answer may surprise you. 

Courts may get rid of pet bans because they are unjust, violate public policy, are extremely one sided in favor of the association or exceed the association’s power.  However this is not a guarantee.  A court may uphold a pet ban if the ban helps to protect the common area. 

Moreover, Arizona statutes govern the validity and enforceability of a homeowners association’s declaration of covenants, conditions and restrictions (CC&Rs).  Accordingly, proposed amendments to condominium CC&Rs banning housebound pets would require unanimous consent of all of owners (including those with pets). See A.R.S. §33-1227(D). 

Thankfully, the overwhelming majority of Arizona associations steer clear of restricting what one can and cannot do within the walls and privacy of their own home.  Of those associations that try to play the dictator role, I oftentimes find that the rule was created to satisfy a board member’s (or members’) personal dislike of animals, nothing more.  Personal biases alone do not create the justification needed for a court to uphold a pet ban.  In fact, rules adopted by the board on these grounds are likely a breach of the board’s duty to act reasonably in their rule making powers and to treat the membership fairly.