Do Owners in an HOA or Condo Have To Pay Extra For Pets?

Here is a question I received via email:

 “My association charges a Non Refundable $250.00 for a dog or pet, I would like to know if this is legal?”

 If the association documents (recorded deed covenants or regulations which are called CC&Rs in California ) allow for a deposit for pets, it is possible it could be found legal if challenged. That is because the CC&Rs are considered a binding contract. If there is no authority in the regulatory documents to charge the deposit, a board should not do it. The legal authority for it is not there.

 The HOA is in a different position than a landlord because the HOA or Condo Board does not usually own the unit or carry responsibility for the interior cleanup or damage.  If an owner  (landlord) of a condo or property in an HOA charged such a deposit to a tenant, it is generally an accepted practice as a means to protect the property and because of the right of the two parties to make a contractual agreement.

 A Condo or HOA board could be challenged on whether such a nonrefundable deposit – which is the equivalent of a fee – is justified. By comparison, a deposit between a landlord and tenant is common practice, and pets can be notorious for causing damage to a property and tend to leave pet dander all over everything. However, the association does not own the dwelling where the pet will be living and so there is not much anticipation of a cost to directly to the association from that aspect. And, a “deposit” suggests that the money will be held to cover damage “if” it occurs, and refunded if not.

 Some boards assume there is a strong likelihood of damages, problems, and costs if pets are kept in the development. By the same token some boards believe the same of tenants and attempt to charge extra fees and deposits for allowing tenants, often called move in, move out fees. A Condo or HOA board could be called upon to explain the rationale behind such a charge and the explanation might have bearing on whether the nonrefundable deposit (or fee as that is really what it is) would be upheld. A deposit that would be returned if there was no damage would make more sense because it would logically provide reimbursement if there was damage.

I am not in favor of recommending “nonrefundable” deposits to boards. It requires extra administration time and charges, and often raises collection issues, and subjects the association to a legal challenge. Addressing reimbursement for actual damage caused with the owner of the unit or townhome makes more sense to me. Addressing noise such as barking or leash violation through fining or other disciplinary proceedings seems more appropriate. But it is important to realize that attorneys give varying advice to associations with regard to these types of fees.

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