Metropolitan News-Enterprise


Tuesday, June 15, 2004


Page 1


S.C. Limits Use of Law Favoring Pets in Condominiums


By DAVID WATSON, Staff Writer


Passage of a state law barring homeowner associations from prohibiting all pets in condominium complexes did not make similar existing restrictions unreasonable as a matter of law, the state Supreme Court ruled yesterday.

An amendment to the Davis-Stirling Common Interest Development Act adopted in 2000 provides that governing documents of condominium associations cannot prevent “the owner of a separate interest . . . from keeping at least one pet.” Paula Terifaj argued that the law undercut the high court’s 1994 ruling in Nahrstedt v. Lakeside Village Condominium Association, 8 Cal.4th 361, that such restrictions are presumptively reasonable.

Not so, Justice Carlos Moreno explained for a unanimous court. Moreno noted that Terifaj’s homeowner association adopted its restriction a year before the law, Civil Code Sec. 1360.5, went into effect on Jan. 1, 2001.

The law expressly applies only to documents “entered into, amended, or otherwise modified on or after” its effective date, he pointed out.

“To allow section 1360.5 to undermine Nahrstedt’s holding in this case would essentially render section 1360.5’s operative date meaningless,” Moreno declared. “Any homeowner could challenge a recorded no-pet restriction on the basis of section 1360.5 without regard to its effective date.”

He continued:

“By enacting section 1360.5, the Legislature did not declare that prohibiting pets is unreasonable, but merely demonstrated a legislative preference for allowing homeowners in common interest developments to keep at least one pet. As we observed in Nahrstedt, prohibiting pets is ‘rationally related to health, sanitation and noise concerns legitimately held by residents’ of common interest developments....While Nahrstedt involved a ‘high-density’ project, the concerns expressed in that case apply equally to the present case, which involves a smaller development. Therefore, nothing in section 1360.5 undermines Nahrstedt’s holding that a no-pet restriction may be reasonable given the characteristics of common interest developments such as condominium projects.”

Terifaj, a veterinarian who had been involved in a long-running dispute about her dogs with the association at the 24-unit Palm Springs complex she used only seasonally, also argued that the restriction was unreasonable because the members passed it over her objections after she purchased her unit in 1995.

At the time she bought the unit the complex had a no-pets rule, but it was not incorporated as part of the governing covenants, conditions and restrictions.

But Moreno said the rule that CC&Rs are entitled to deference, though adopted in Nahrstedt, a case which involved a no-pets rule already a part of the CC&Rs at the time of purchase, applied equally to her case. The justice cited portions of the Davis-Stirling Act making the CC&Rs enforceable “unless unreasonable” and providing for their amendment by owners.

“We conclude that under the plain and unambiguous language of sections 1354, subdivision (a), and 1355, subdivision (b), use restrictions in amended declarations recorded subsequent to a challenging homeowner’s purchase of a condominium unit are binding on that homeowner, are enforceable via injunctive relief under section 1354, subdivision (a), and are entitled to the same judicial deference given use restrictions recorded prior to the homeowner’s purchase,” Moreno said.

Limiting the enforcement of amendments to the CC&Rs would give an owner opposed to a change, like Terifaj, an effective veto power, the justice observed.

The case is Villa De Las Palmas Homeowners Association v. Terifaj, 04 S.O.S. 2935.


Copyright 2004, Metropolitan News Company