When drafting or amending condominium bylaws, the Restrictions section—typically Article VI of the Condominium Bylaws—often garners the most feedback, review or modification. One of the key provisions within the Restrictions section addresses pet restrictions including: the registration of pets with the association, not allowing pets loose on the condominium premises, co-owners must clean the dog’s feces so as not to be a disturbance to others, each co-owner may only have a certain number of pets, etc. Of the many permissible pet restrictions, a ‘hot topic’ lately has been whether it is against Michigan law to limit the height or weight of dogs within a condominium association.
Michigan Condominium Act and the Rules
Interpreting the Michigan Condominium Act
As an initial matter, nothing in the Michigan Condominium Act, MCL 559.101, et seq. allows for or prohibits a certain size or weight of dogs. However, there is a provision that states that co-owners must comply with the bylaws and rules and regulations of the condominium. Specifically, MCL 559.165 states:
Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and this act.
The Michigan Condominium Act Rules further expounds on the fact that all present and future co-owners must comply with the condominium documents. Specifically, R 559.510 states:
The bylaws shall provide, in accordance with section 65 of the act, that all present and future co-owners, tenants, and any other persons or occupants using the facilities of the project in any manner are subject to, and shall comply with, the act, the master deed and bylaws, and the articles of association, and rules and regulations adopted by the association of co-owners.
Therefore, someone may assume that if the condominium bylaws or rules and regulations restrict the size or weight of pets, including dogs, that such provisions would be routinely upheld by Michigan courts. Unfortunately, that person would be wrong. In an unpublished decision from 1989, the Michigan Court of Appeals held that pet size and weight restrictions in the rules and regulations of the condominium were unreasonable and therefore unenforceable. Thus, Associations should be cautious when attempting to limit the size and weight of pets in a condominium in Michigan.
Bear Creek Village Condominium Association v. Clark
In Bear Creek Village Condominium Association v Clark, unpublished opinion per curiam of the Court of Appeals, issued March 23, 1989 (Docket No. 104101), the association implemented rules and regulations that prohibited dogs over 40 pounds or dogs over 18 inches in height measured in a standing position from the floor to the top of the back of the dog. Kaye Clark, the co-owner, argued that there was a lack of a rational relationship between the height of a dog and the health, safety, and general welfare of the condominium community. The Michigan Court of Appeals agreed with the co-owner and held that the size or weight of a dog has no reasonable bearing on the potential for problems caused by certain dogs. The Court stated, “We agree that to discriminate between dogs on the basis of the size alone is unreasonable and arbitrary.” Thus, the co-owner was entitled to keep her dog in the co-owner’s unit.
In making its determination, the Court of Appeals cited a Florida case, Hidden Harbour Estates, Inc. v. Norman, 309 So2d 180, 182 (Fla App, 1975), which stated:
Certainly, the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining.
Therefore, when interpreting the rules and regulations of a condominium association, the key question is whether the particular rule or regulation is reasonable or arbitrary. When it comes to pet restrictions, the Michigan Court of Appeals provided two examples where it considered pet restrictions would be reasonable in the rules and regulations of the condominium association. First, the association may set a certain number of complaints (concerning a dog’s behavior or a dog owner’s failure to clean up after the animal), after which permission for maintaining of the animal might be revoked. Second, the association may determine the acceptability of dogs by breed.
It is important to note that the Bear Creek decision did not address whether size and weight pet restrictions contained in the condominium bylaws would be upheld as reasonable. In addition, the Court of Appeals decision is unpublished, so its precedential effect is questionable. See MCR 7.215(C). As such, some practitioners in Michigan still include size and weight restrictions for dogs in the condominium bylaws such as limiting dogs to 35 or 40 pounds or less. While the Michigan Court of Appeals has not ruled whether such pet restrictions in the condominium bylaws instead of the rule and regulations of the condominium are acceptable, we stress caution with our clients who want size and weight pet restrictions based upon the Bear Creek decision.
When an association is deciding what pet restrictions are appropriate and desirable, the key focus should be on whether the pet restrictions are reasonable. Given the Bear Creek case, the Michigan Court of Appeals has held that size and weight restrictions for dogs in the rule and regulations of the association are unreasonable and unenforceable. Associations should take note of this decision when deciding what pet restrictions are appropriate or necessary.
Joe Wloszek is a Member of Hirzel Law, PLC where he focuses his practice on condominium and homeowner’s association law, commercial litigation, commercial real estate, large contractual disputes, and related real estate matters. Mr. Wloszek has been a Super Lawyers Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. He was also named a Top Lawyer in commercial law by DBusiness Magazine in 2014, a Michigan Top Lawyer in real estate law by Michigan Top Lawyers in 2016. He is a Certified Real Estate Continuing Education Instructor through the State of Michigan and the past Chair of the Oakland County Bar Association Real Estate Committee. He can be reached at (248) 480-8758 or email@example.com.