“Owner’s Pot-Bellied Pig Leads To Unusual Discrimination Lawsuit,” Community Association Management Insider

“Owner’s Pot-Bellied Pig Leads To Unusual Discrimination Lawsuit,” Community Association Management Insider

An Ohio HOA recently learned the hard way that discrimination lawsuits arising out of pet restrictions aren’t limited to disability-related claims. That’s one lesson from the association’s attempts to remove a pig from its premises; the other is that poorly worded restrictions can backfire.

A Pig in a Poke
“I’ve seen disputes with atypical pets, but it’s usually when there’s a reasonable accommodation request based on a disability,” says David Muller, a shareholder and board-certified specialist in condominium and planned development law with the Naples, Fla., office of Becker & Poliakoff.

In this circumstance, though, the animal-loving owner accused the association of discriminating against her based on her national heritage. According to local media reports, the pig owner was born in Vietnam and moved to the United States when she was about six years old. Before she left, though, she’d had a pet pig that she cherished. In 2018, the woman and her husband purchased a pig they named Arnold Ziffel and brought her (yes, Arnold is female) into their home in a subdivision near Springboro, Ohio.

More than two years later, the homeowners association for the subdivision filed a lawsuit in state court against the couple, seeking a temporary restraining order to remove the pig. The couple responded by filing their own federal lawsuit against the association. They accused it of unlawful housing discrimination based on the wife’s Vietnamese heritage. The Cincinnati Enquirer reported that their lawsuit filing included several news articles from Asia depicting pigs as pets.

“They presented evidence that in certain cultures pigs are kept as household pets, not for meat or farming, and used not differently than a dog or cat,” explains Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with community associations. The association’s rules allow “dogs, cats, and other domestic household pets.”

So, the magistrate judge considering the HOA’s request for a temporary restraining order said, resolution turned on whether Arnold was a household pet. The judge found “that Arnold is a domesticated animal that is regularly kept and fed by the members of the household inside the house, and is in every way treated as a companion animal, as opposed to a livestock or utility animal.” (As of this writing, the discrimination lawsuit is pending in federal district court.)

The Language Problem
Your clients need to know about this case because the problem stemmed from language that’s common in governing documents. “Most older associations, and even some newer, have language that says ‘household pets’ are allowed, but the term is never defined,” says Robert Ducharme, a solo practitioner who has represented New Hampshire associations for 20 years.

Hirzel says such vague language is risky. For a presentation he gave on “alternative pets” a few years back, he found multiple examples of how it can get an association into trouble. “There was a 2016 case from New Mexico about whether a hen was a household pet. The Court of Appeals found it was because it was used for personal love and affection, not eggs or profit. In a North Carolina case with a similar restriction on household pets, the court determined an owner’s goats were pets because they were kept for pleasure, not profit.” Hirzel’s conclusion based on his research? “You’re doing the HOA a disservice if you’re restricting pets as opposed to animals.”

This is especially so, he says, in light of the popularity of “alternative pets” with Millennials. As their numbers among association owners grow, the issue could arise again and again. Hirzel says a court is likely to deem any animal that would reasonably fit in a house to be a household pet. The way to avoid such an adverse finding, he says, is to put in place a restriction on animals and skip the word “pets” altogether.

“We normally define which types of animals are allowed so no other types are allowed. An example would be ‘No animals, excepts for cats, dogs, and fish, may be kept or allowed on the Condominium Premises.’” Hirzel speculates that the language in the Ohio association’s documents was drafted by the developer. “It’s something associations frequently overlook,” he says. “That original language isn’t an issue until it’s an issue.”

With that in mind, your clients should review their documents and, if necessary, amend the language. “Every association board needs to take a look at their pet restrictions and understand that it’s not just cats and dogs they need to think about anymore,” Muller says. He also cautions associations considering new restrictions to take into account their current pet landscape: “If you’re adopting a restriction that you know will affect existing owners, talk to your attorney about what it will mean and whether you should exempt those owners. You have to expect a legal battle otherwise. Many people care more about their pets than themselves, meaning they’re willing to spend a lot of money on attorneys to protect their pets. The emotional ties people have to their pets is a real thing.”

Ducharme suggests another approach to pet restrictions. “The better language is simply to allow pets unless they become a nuisance, as determined by the board. That way, you don’t have to get into types, sizes, and numbers.” He says this can preempt situations where, for example, an outraged owner says, “You can have two dogs that bark all night because the rule allows two pets, but I can’t have three goldfish?”

Ducharme recounts a colleague’s case where a judge inquired whether an owner could have a horse as a pet. “He had the perfect answer: ‘Sure, Judge. As long it’s inside the unit and not bothering anyone, why would anyone care?’ And that should be the standard.”

To read the original article, please click here.

David Muller is board-certified in Condominium and Planned Development Law and regularly provides practical advice to ensures the fiscal success and legal compliance of both commercial and residential community associations. He has significant experience in drafting governing documents and amendments, negotiating contracts, dispute resolution, and more. For David’s complete bio, please click here.