Common use of THE BENEFIT Clause in Contracts

THE BENEFIT. What is gained from an uncompromising prohibition against pets that are confined to an owner’s unit and create no noise, odor, or nuisance? To the extent such animals are not seen, heard, or smelled any more than if they were not kept in the first place, there is no corresponding or concomitant benefit. Pets that remain within the four corners of their owners’ condominium space can have no deleterious or offensive effect on the project’s common areas or any neighboring unit. Certainly, if other owners and residents are totally unaware of their presence, prohibiting pets does not in any respect xxxxxx the “health, happiness [or] peace of mind” of anyone except the homeowners association’s board of directors, who are thereby able to promote a form of sophisticated bigotry. In light of the substantial and disproportionate burden imposed for those who must forego virtually any and all association with pets, this lack of benefit renders a categorical ban unreasonable under Civil Code section 1354. The proffered justification is all the more spurious when measured against the terms of the pet restriction itself, which contains an exception for domestic fish and birds. A squawking bird can readily create the very kind of disturbance supposedly prevented by banning other types of pets. At the same time, many animals prohibited by the restriction, such as hamsters and the like, turtles, and small reptiles, make no sound whatsoever. Disposal of bird droppings in common trash areas poses as much of a health concern as cat litter or rabbit pellets, which likewise can be handled in a manner that avoids potential problems. Birds are also known to carry disease and provoke allergies. Neither is maintaining fish without possible risk of interfering with the quiet enjoyment of condominium neighbors. Aquarium water must be changed and disposed of in the common drainage system. Leakage from a fish tank could cause serious water damage to the owner’s unit, those below, and common areas. Defendants and the majority purport such solicitude for the “health, sanitation and noise concerns” of other unit owners, but fail to explain how the possession of pets, such as plaintiff’s cats, under the circumstances alleged in her complaint, jeopardizes that goal any more than the fish and birds expressly allowed by the pet restriction. This inconsistency underscores its unreasonableness and discriminatory impact.12