Q: I own a home that is governed by the N.C. Condominium Act. In the recorded Declaration of Condominium, there is a specific section regarding animals. It prohibits commercial breeding and exotic animals, but specifically allows common household pets “including but not limited to dogs, cats, canaries, parakeets, etc.” After I bought my home, the HOA supplemented its rules and regulations to change the language in the recorded covenants to allow only two cats or two dogs and no more than four pets total. I am now renting the home and I have been told that my tenant, who has three dogs, is in violation. The dogs are small, each under 8 pounds, and they have not caused a safety issue for other residents. I always thought that rights afforded in recorded covenants could not be restricted by changes in the rules and regulations. Is this not correct?
A: In general, any restrictions on how a property owner can use his or her property must be in writing, recorded at the Register of Deeds, and “in the chain of title” to the property.
Thus, any restrictions on the types or number of pets allowed in your condominium must be included in the original recorded Declaration, or in an Amendment to the Declaration that has been properly approved by the members of the homeowners’ association and recorded.
While an HOA board clearly can adopt rules and regulations on how common areas are used and maintained, restrictions on what a homeowner does within the confines of his own condominium, lot or home cannot generally be imposed by an HOA through rules and regulations adopted by the board.
The only exception is if the Declaration specifically grants the HOA board the power to adopt rules governing a particular aspect of an owner’s property.
For example, the Declaration could bestow upon the board rule-making authority with respect to pets, or it could grant an architectural review committee the power to adopt regulations and specifications for architectural and landscaping changes to homes and lots.
The bottom line is that restrictions on the type and number of pets allowed in a condo unit need to be part of the condo Declaration, unless the Declaration has specific language that grants the HOA board the authority to adopt rules and regulations on the keeping of pets.
If your condo Declaration does not bestow such authority on your board, then it is likely that the two-pet limit imposed by the board is not enforceable.
Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley.
“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer
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