The following CC&R
was graciously provided by California attorney Jeff A. Beaumont, a member
of the firm of Rapkin,
Gitlin & Beaumont, an expert in the law pertaining to homeowner
associations. His office represents hundreds of homeowners associations,
many of which have been confronted with dangerous dogs. A homeowner's
association that needs to deal with this issue can present this CC&R
to its attorney or, if there is no attorney, may contact Mr. Beaumont
for advice at the link given above. Keep in mind that this particular
CC&R was drafted for use in California, and makes reference to other
CC&Rs, for which reason it needs to be revised before use; therefore,
a homeowner association should present this to its attorney before enacting
it:
PROPOSED AMENDMENT
1.
Article VIII, Section
12, of the Association’s Declaration of Establishment of Protective
Covenants, Conditions and Restrictions states as follows:
“No animals
(including, but not limited to horses, fowl, reptiles, insects, or
poultry) shall be kept within the Project, except that domestic dogs,
cats, birds, fish and other household pets may be kept as household
pets within the Project provided that they do not create a disturbance
and provided that they are not kept, bred or raised thereon for commercial
purposes or in unreasonable quantities. As used in this Declaration
‘unreasonable quantities’ shall be deemed to limit the number
of dogs and cats to two (2) each, and no more than three (3) in total;
however any litter may be retained for a reasonable period.”
Discussion: Section
12 permits owners to keep within the Association’s properties
domestic pets, including dogs, provided the pets do not create a disturbance.
Section 12 does not address an owner’s ability to house potentially
dangerous and vicious dogs. An owner recently reported an incident
to the Board of Directors involving a dog biting the owner’s
minor child.
The Board acknowledges
that the state legislature has found and declared, pursuant to Section
31601 of the Food and Agriculture Code, that: potentially dangerous
and vicious dogs have become a serious and widespread threat to the
safety and welfare of California citizens; potentially dangerous and
vicious dogs have assaulted without provocation and seriously injured
numerous individuals, particularly children, and have killed numerous
dogs; these attacks have occurred in recent years and many have taken
place in public places; the number and severity of these attacks are
attributable to the failure of owners to register, confine, and properly
control vicious and potentially dangerous dogs; and the necessity
for the regulation and control of vicious and potentially dangerous
dogs is a statewide problem, requiring statewide regulation, and existing
laws are inadequate to deal with the threat to public health and safety
posed by vicious and potentially dangerous dogs.
The Board of Directors
also acknowledges that it has a duty to maintain and operate the common
area in a safe condition. As such, the Board recommends amending Article
VIII, Section 12, of the Declaration of Establishment of Protective
Covenants, Conditions and Restrictions to place certain restrictions
on an owner’s ability to house vicious and potentially dangerous
animals and to otherwise protect the health, welfare and safety of
the Association’s owners.
It is hereby recommended
by the Board of Directors that Article VIII, Section 12, of the Declaration
of Establishment of Protective Covenants, Conditions and Restrictions,
be amended to read as follows:
“No animals
(including, but not limited to horses, fowl, reptiles, insects, or
poultry) shall be kept within the Project, except that domestic dogs,
cats, birds, fish and other household pets may be kept as household
pets within the Project provided that they do not create a disturbance
and provided that they are not kept, bred or raised thereon for commercial
purposes or in unreasonable quantities. As used in this Declaration
‘unreasonable quantities’ shall be deemed to limit the number
of dogs and cats to two (2) each, and no more than three (3) in total;
however any litter may be retained for a reasonable period.
No owner who possesses
a dog or other animal shall permit, allow, or cause the dog or other
animal to run, stray, be uncontrolled or in any manner be in, upon,
or at large upon any part of the Private Streets and Common Area,
unless it is restrained by a substantial leash and under the control
of a responsible adult. [Consider adding "no longer than six
feet" after the word "leash" in the foregoing sentence.]
Notwithstanding
the foregoing, no domestic dogs shall be within the Common Area and
Private Streets that are deemed by the Board to be vicious or potentially
dangerous dogs. All vicious and potentially dangerous dogs must be
kept indoors or in a securely fenced area within the Owner’s
Lot from which it cannot escape, and into which children or other
individuals cannot trespass. A dog shall be deemed “vicious”
for purposes of this Section if, when unprovoked: 1) it has bitten
a person (however, a dog may be vicious even though it is not proven
to have bitten any person); 2) in an aggressive manner, it inflicts
severe injury on or kills a human being; or 3) it is previously determined
to be and currently listed as a potentially dangerous dog (as determined
by the Board of Directors or local governmental authority) and, after
its owner or keeper has been notified of this determination, it continues
to engage in behavior deemed potentially dangerous. For purposes of
determining if a dog is “vicious,” “severe injury”
means any physical injury to a human being that results in muscle
tears, disfiguring lacerations, or requires multiple sutures or corrective
or cosmetic surgery.
A dog shall be
deemed “potentially dangerous” for purposes of this Section
if, when unprovoked: 1) on two separate occasions within the prior
36-month period, it engages in any behavior that requires a defensive
action by any person to prevent bodily injury when the person and
the dog are off the property of the owner or keeper of the dog; 2)
it bites a person causing a less “severe injury” than as
defined above; or 3) on two separate occasions within the prior 36-month
period, it has killed, seriously bitten, inflicted injury, or otherwise
caused injury attacking a domestic animal off the property of the
owner or keeper of the dog. [Consider adding "or 4) the dog has
run loose or, if leashed, was not under the control of a responsible
adult on two occasions" after subsection (3) above. When making
this change, also delete the word "or" in the phrase "or
3)" above.]
The Association
shall have the right to cause a dog found to be in violation of any
provision of this Section to be removed from the Project and to enforce
this Section pursuant to the terms of Article XI, Section 3, of the
original Declaration or any other provision or amendment thereto.
A homeowner association
may be liable for permitting dangerous dogs to remain on the common
areas and private streets owned and controlled by the association. The
Board of Directors of these associations have a fiduciary duty to manage
and operate the common areas, including making them safe and warning
of any known dangerous conditions. Although there are not many cases
establishing precisely the liabilities and responsibilities of homeowner
associations pertaining to dogs, the prudent association would be well
advised to enact Covenants, Conditions and Restrictions (called "CC&Rs")
that would place reasonable restrictions on an owner’s ability to house
vicious and potentially dangerous animals.