I have seen a lot of HOA rules in my time as a real estate agent that I thought were pointless, some even downright ridiculous…but until last week I have never had a sale cancel because of one, despite efforts from all parties to garner an exception. After a board member insinuated it was my fault for not knowing the regulations (see below * to understand why this is not the agent’s responsibility), and after many attempts and conflicting information received, the parties were all left exasperated and very upset when the sale had to cancel at the last minute.
HOA regulations can be beneficial, and in most instances I am all for them – I myself live in an HOA regulated neighborhood. I like the fact that my neighbor can’t paint his garage Pepto Bismol pink or leave a front yard full of weeds (although with current water restrictions most yards are looking that way anyway, but that’s a story for another blog). I understand the need for stricter regulations in condominium developments as well, since there are shared walls and many common areas. But in this particular case the home is a detached home in a small neighborhood of homes with small yards.
The regulation in this case was a pet restriction that postulates all pets, with the exception of fish, must not be more than 25 pounds total (so a cat and a dog together cannot weigh more than 25 pounds). The problem in my sellers’ case started when the HOA took 17 days to get the regulations out to the buyers – a week longer than is required under the standard California Residential Purchase Contract. Keep in mind that day 17 is the day (unless altered in the contract) when the buyers have to remove their contingencies (except for the loan contingency).
The buyers got the HOA docs on day 17 and immediately started reading through them so that they could remove contingencies. Lo and behold they discovered the pet weight restriction. They wrote a letter to the HOA asking if an exception could be made, as their dog weighed 15 pounds over the limit. For the next several days the buyers and their agent, and the sellers and I, all tried to appeal to the HOA and/or board members, but in the end we were given different stories – it was a unanimous vote against, it was a majority vote against, and that they couldn’t/wouldn’t vote on any exceptions.
After spending money on an appraisal, home inspection, and lots of time negotiating repairs and other issues, the buyers decided to cancel – they love their dog and could not imagine moving into a neighborhood where she was not welcome. It was a frustrating day for all involved.
* A note on agent “responsibility” involving HOA regulations and disclosure: I think it is important to note here that it is not the listing agent’s responsibility to investigate and disclose any HOA regulations. The reasons for this are obvious – these regulations can change at any time, and if agents had to keep up with what goes on at every HOA meeting for every property they list, they wouldn’t have time to do their jobs effectively; not to mention they could subject themselves to liability in doing so.
Now, if an agent happens to know of a regulation that might be a sticking point for buyers, s/he can use discretion as to whether to post it in the MLS listing under confidential agent remarks (I did that in this case after we went back on the MLS). The whole purpose of escrow officers charging sellers to order HOA documents, and the reason they are supposed to be delivered to buyers in 10 days, is to provide the buyers an opportunity to review them and make those decisions for themselves – one person’s frustration over a particular regulation may not be that of another.
The moral of this unhappy story is that the buyers lost their “dream home,” and the sellers had to go back to market, having lost the other buyers (it was a multiple offer situation). Had the buyers moved in and fought the regulation they may have lost, which could have cost them their dog. As a dog lover I understand why they made their decision, and as a human being I question the ability of a governing body to limit the weight of a dog – in my opinion it really is no one’s business and if a dog owner is a good one and makes sure their pets get enough love and exercise, it shouldn’t matter if the dog is 10 pounds or 80.
I plan to write another segment on this story from a legal perspective. If you find yourself in a similar situation there is some case law that may or may not help you on the subject, and some ways to determine whether such rules are actually enforced – if they are not your case could be even stronger…stay tuned.