—Upset about Overweight Pooch
“When faced with a dispute of this type, it is recommended to closely scrutinize both sets of documents. The bylaws may very well authorize the board to make pet restrictions, but unless rules or covenants are specifically adopted addressing this issue, the unit owners remain free to own pets. Another factor affecting the restriction’s validity is whether the board has a history of failure to enforce this restriction, which might render it unenforceable.
“Secondly, we have to look at the dog owner’s circumstances and determine if the restriction applies. The dog might be a service animal or the owner might need the dog for emotional or mental reasons. These types of situations could bring up protection under the American Disabilities Act, which may lead a court to rule in the owner’s favor despite a perfectly valid and enforceable pet restriction.
“Another thing to consider is that the owner already owned the dog when he or she moved in. It would be worth going back to the exact wording of the restriction: Does the restriction address both pre-owned dogs and dogs acquired after a unit owner has moved in? It may be possible that owners moving in with large dogs do not fall under this restriction.
“Overall, these types of matters are very fact-specific and will vary case-by-case, and the outcome will be primarily dependent upon the covenants themselves.”