There is a cliché that most disputes in condominium communities arise from one of “people, pets or parking.” Given the number of disputes that can (and frequently do) involve pets, a question that we are often asked by both unit owners and condominium boards of directors is whether condominium corporations can ban pets from the building, or can require a unit owner to remove a problem pet from a unit.
To start, one must look at the governing documents for an individual condominium corporation. These include the declaration (the foundational document for the corporation that is sometimes likened to the building constitution), the by-laws and the rules. Restrictions on the use of the units, including on the pets that one may be permitted (or not) to keep in a unit, can be found in either the declaration or the rules.
Most condominium corporations’ governing documents do contain some restrictions that affect the keeping of pets in a unit. These restrictions may include restrictions on the types of animals that may be kept in a unit (e.g., no livestock), the number of animals that may be kept in a unit (e.g., no more than two pets per unit) or the size of the animals that may be kept in a unit (e.g., no pets over 25 lbs. in weight). These restrictions apply to all unit residents equally, whether they are owners or tenants. It is much less common for condominium corporations to have provisions in their governing documents banning pets entirely, and the courts have held that an outright prohibition on pets may be unreasonable, and therefore unenforceable, in certain circumstances.
Most condominium corporations’ governing documents also contain provisions regarding behaviour of pets. If the condominium board of directors is of the reasonable view that the pet has acted in a manner that causes a nuisance or a danger to others (such as persistent barking in a unit, or lunging at other unit residents or their pets), the board may determine that the pet is a nuisance animal and is therefore required to be removed from the property.
If a unit resident breaches the pet provisions in the corporation’s governing documents, either by having one or more pets that is not permitted (e.g., too many cats or a dog that is too large) or by having a pet that has been deemed a nuisance by the board, the corporation can enforce removal of the pet through either court proceedings or private mediation and arbitration. (At some point in the future, it is anticipated that these sorts of disputes may proceed before the Condominium Authority Tribunal, but as of this writing the Government of Ontario has not given the CAT the jurisdiction to deal with these disputes.) The condominium corporation could also seek its legal costs of the proceedings to remove the animal in question.
There are two other considerations to keep in mind. First, the Human Rights Code trumps the Condominium Act, 1998 with respect to matters falling under the jurisdiction of the Code, including accommodation for persons with disabilities. For example, if a person who was visually impaired required a seeing eye dog and the dog was larger than the size restriction for dogs in the building, the person would be permitted to keep the seeing eye dog in his or her unit regardless of the size restriction that would otherwise apply. It should be noted that a person who has a disability and who is seeking accommodation for the disability has an obligation to cooperate in the accommodation process by, among other things, providing medical documentation that may be reasonably requested by the condominium corporation.
Second, condominium corporations are required to consistently and evenly enforce their governing documents. If they do not do so for a significant period of time, unit residents may rely on the non-compliance and assume that the provision in question will not be enforced going forward. In those circumstances, a condominium corporation that has ‘slept on its rights’ in such a manner may find that a court or arbitrator is unwilling to enforce the provision in question due to the historical lack of enforcement. For corporations with lengthy histories of non-enforcement of pet provisions, this may mean giving unit residents notice of the corporation’s plan to enforce these provisions going forward, and ‘grandparenting’ non-compliant residents who have relied on the corporation’s historical lack of enforcement.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.