By: Martin K. I. Rumack, Barrister and Solicitor
Living in a condominium can be the best of both worlds: a condo owner has outright title to his or her own unit, but at the same time can enjoy the benefits of shared responsibility for the common elements and enjoy the “instant community” that a condo living can provide.
For pet lovers, however, the condominium lifestyle can have its drawbacks. This is because condominium corporations are entitled by law to set restrictions on a unit owner’s right to keep pets – or may prohibit pet ownership outright. The authority to do this comes from the Ontario Condominium Act, 1998, which clearly allows condominium corporations to include such restrictions or prohibitions in their declarations.
As with most rules, however, there can be exceptions. The condominium corporation’s declaration can be amended to allow for pets, but only if the owners of at least 80 per cent of the units consent in writing. The condominium board must also approve of the amendment, must hold certain meetings, and must notify the mortgagees of the proposed change.
Unfortunately, if the declaration has not been amended to allow for pets, there is little that a pet-loving unit owner can do. Several years ago, a unit owner challenged her condominium corporation’s “no pets” rule in the Ontario courts, on the grounds of unfairness. She wanted her dog “Jazz” to be allowed to live with her in her condominium unit, and pointed out that there were many other owners who kept pets. She also relied on the fact that the condominium management staff had never complained about pets being on the premises, and had never tried to enforce the prohibition before.
Although the court concluded that it had the right to override the “no pets” prohibition in the declaration, it could only do so in the right combination of circumstances. In particular, the court felt that it had to take into account the overall nature of the specific condominium environment, including the following factors:
- The nature of the total development — for example, is it a high-rise or townhouses? Does it consist of senior only or mixed residential?
- What are the reasonable expectations of the other occupants of the development?
- How seriously do other occupants take this particular issue as opposed to other issues?
- Does the conduct of the unit owner in question interfere with others?
- Have there been any complaints by other unit owners?
- What is the relationship between or amongst the various interested parties?
- What is the actual wording of the covenant which is being enforced — are similar pets allowed, for example, while dogs are disallowed?
- What are the advantages of requiring compliance compared to the advantages of permitting noncompliance?
In the end, the court was sympathetic to the fact that the unit owner was extremely fond of her dog. Nonetheless, it found that she had to abide by the condominium corporation’s rules.
This may seem like an unusually harsh outcome, and one which will no doubt rub pet-lovers the wrong way. However, the court reasoned that, by allowing the “no pets” prohibition to be ignored, the door would be open for other unit owners to request all kinds of other exemptions. And in the end, unit owners need to be aware that the condominium corporation’s by-laws and declaration are in place for a good reason, and will be enforced both by the condominium corporation and by the courts if necessary.
The underlying message to both pet lovers and non-lovers alike is that the condominium ownership is different from owning a freehold home. Condo owners must be prepared to live by the rules of the community that they are joining – after all, the rules are designed to benefit all owners as a whole.
Martin K. I. Rumack is a Toronto based Barrister and Solicitor and is a regular contributor to the Muddy York Blog. Contact Information: 202 – 2 St. Clair Avenue East, Toronto, Ontario, M4T 2T5, Tel: (416) 961-3441 (Ext. 26)
