By: Jayson Schwarz LLM with assistance from Ernest Woo JD
When buying a condominium the emotional aspects are often as important as the legal aspects and the two are inexorably intertwined. The reason this was brought up was due to a question given to me recently. Why can the condominium corporation stipulate no pets when you own your condominium?
The answer is, in essence pretty simple. If the declaration and by-laws provide no pets you can’t have any. This is because the Condominium Act allows a corporation to make rules to promote the safety, security or welfare of the unit owners and to prevent unreasonable interference with the use and enjoyment to the common elements. For example, in January of 1997, the case of Peel Condominium Corporation No. 499 and Amy Elizabeth Frances Hogg was heard and decided in the Ontario Courts of Justice. The issue was whether could she keep her dog Jazz in her high-rise condo even though the declaration stated that no pets were allowed? Amy had a lawyer, had a disclosure statement, knew about the rule but saw that others were breaking it. The Judge said that strictly by the law she had to obey the rules. An argument in equity or fairness was tried and the Judge referred to 8 considerations. The chances of qualifying on all 8 of these considerations were very unlikely, and Amy had to give up Jazz.
However, sometimes these condominium rules may be struck down by the Court. There have been a few decisions that indicate that if you have a provable handicap and can demonstrate that you need the pet to assist with said handicap relief may be available (i.e. seeing eye dog). It would appear Human Rights considerations can override condominium by-laws and rules. In YCC No. 26 v Ramadani, the courts confirmed that it would not substitute its own discretion on whether a pet could be kept in a condominium but the Court would review the Board’s conduct to ensure their discretion has been use properly.
In June, 2003 Justice Flynn made a decision in Waterloo North Condominium Corp. No. 186 v. Weidner, where he upheld the integrity of the Declaration and its “reasonableness” is not something that can be attacked. He found that in this case unless the owner was dependent on the dog or needed the dog in order to live in the unit, the Human Rights Code would not assist. He said a total ban on pets is not unreasonable.
However, in 2005, the Waddington decision, the landlord sought an order for the removal of Waddington’s two cats. The condominium’s rules provided that, “no pet should be permitted in the building”. The court decided that a blanket rule banning all pets was not enforceable as it was not reasonable.
Another way to keep you pets may be through equitable reasons. In the Staib v Metropolitan Toronto Condominium Corp, a provision in the declaration absolutely prohibiting any pets was held by the trial judge to be unenforceable for equitable reasons. The Court found that the condominium corporation failed to enforce the no pet policy for ten years, despite having knowledge of the cat’s presence. The judge refused to enforce the declaration due to the length of time the cat was allowed to remain, the tenants attachment to the cat and the age of the cat.
The cases provide evidence that the court will decide whether the Board has been reasonable in disallowing pets. The moral of the story is that owning a condominium is different then owning a freehold. You must be prepared to be part of the community and recognize that the rules are to take care of everyone and usually there can be no exceptions.
How do we prepare for this? Speak to a legal professional you can trust and do not be afraid to tell him or her all of your concerns either before you sign the offer or during the 10 day cooling off period. Remember buying a home is a large financial and emotional commitment and you want to get it right.