Every couple of years, it seems, there are reasons to revisit the topic of Homeowner Association (HOA) rules governing pets. The time has come again.

Prior to 2001, California HOAs and mobilehome parks could, with certain exceptions, as for seeing-eye dogs, prohibit the ownership of pets within their confines. But, as a result of Assembly Bill 860, the civil code was amended, effective, Jan. 1, 2001, so that any HOA or mobilehome park rules adopted after that date could not prohibit the ownership of at least one pet, "subject to reasonable rules and regulations."

Moreover, AB 860 included language specifying, "The requirements of the bill would go into effect for any new agreements entered, amended, or otherwise modified after January 1, 2001." That is, AB 860 not only applied to the rules of new HOAs, ones formed after Jan. 1, 2001, its provisions also applied to existing HOAs that amended or modified their rules after that date. Suppose an HOA, formed in the 1980s, had a no-pet rule. If that association were now to amend its rules -- not necessarily rules related to pets -- the "no pet" rule would become void. At least one pet would have to be allowed, subject to reasonable rules and regulations.

An appellate court case (Auburn Woods I Homeowners Association v. Fair Employment Housing Commission, Third District) published last fall, sheds light on some of the exceptions that may apply to an HOA's pet restrictions. It shows that these exceptions are not necessarily restricted to trained "service animals" such as seeing-eye dogs.

The Auburn Woods CC&Rs, written prior to AB 860, provided that "no reptiles or animals shall be permitted… except that pet birds and domestic house cats (limit of 2) shall be allowed, so long at they do not constitute a nuisance…" The CC&Rs also specifically stated, "No dogs are allowed to be kept anywhere in the development."

Ed and Jayne Elebiari, husband and wife, purchased an Auburn Woods condominium in 1998. Both the Elebiaris had a well-documented history of severe and debilitating depression. In April of 1999, the Elebiaris obtained, and brought home a small terrier named Pooky. Pooky's presence in their home had a demonstrably beneficial effect on the condition of both the Elebiaris.

The Association management soon notified the Elebiaris, that fines would be imposed unless they removed Pooky from the premises. Mrs. Elebiari requested permission to keep Pooky, based on their medical condition. Even after submission of further requests, along with a letter from their treating psychiatrist, the Association maintained its position. The Association attorney pointed out the rules would allow them to keep a cat for companionship purposes, just not a dog. Mrs. Elebiari responded that she was allergic to cats.

Ultimately, the Elebiaris filed a complaint with the Department of Fair Employment and Housing (DFEH). The Department is charged with enforcing the Fair Employment and Housing Act which, among other things, makes it unlawful to refuse "to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person, equal opportunity to use and enjoy a dwelling."

The DFEH issued an accusation against Auburn Woods. After a lengthy hearing, an administrative law judge ruled that allowing a companion dog would have been a reasonable accommodation in this case, and that Auburn Woods' refusal constituted unlawful discrimination. Auburn Woods then took the matter to a trial court, which overturned the ruling. An appeal was filed, and the Appellate Court reversed the trial court. The Appellate Court upheld the original ruling.

In its ruling, the Appellate Court spent more than eight pages reviewing a variety of earlier cases and administrative rulings. It made clear that there was ample precedent for treating depression as a disability. It also showed that the obligation to make reasonable accommodations was not restricted to "service dogs."

Having noted, though, that this case fell under well-established principles, the Court also emphasized that its ruling here was "fact-specific" to the Elibiaris' situation. It absolutely did not hold that every depressed person has a right to keep a pet, regardless of what CC&Rs may say.