Written by David Samuels
When an individual is in the process of purchasing or leasing a condominium unit, there are two governing documents that relate to the rules and restrictions of the condominium: the Declaration and the Rules. In most cases, the declaration takes precedence over the general rules. As such, it is imperative for potential buyers or renters, especially those with animals, to review these documents to identify any pet restrictions that may be incorporated. For example, documented pet restrictions will provide information regarding the number of animals allowed per unit or the type of animals permitted.
If there is a rule that prohibits pets in a condominium’s official declaration, an individual will be more restricted regarding what options they have when trying to dispute the rule. The judge in Staib v. Metropolitan Toronto Condominium Corp reasoned that if a condominium were to rely on a declaration to prohibit pets, the rule must be enforced regularly and consistently; otherwise, the rule may not be valid. Furthermore, although rules in a declaration are often binding, there are human right exceptions which can override the condominium’s declaration and allow an individual to retain their pet; for example, if an individual has a service animal. The decision in Waterloo North Condominium Corp No. 198 v. Donner has substantiated this, where it was concluded that the presence of a dog was necessary if a condominium unit owner is dependent on the dog due to a disability.
When a condominium’s prohibition is contained only as a general rule, and not in its declaration, the case of Waddington and Subsection 58(1) of the Condominium Act states that a condominium typically cannot make a general rule banning all pets. If the rule prohibiting pets is not explicitly set out in the declaration, a rule prohibiting pets is not enforceable as it is not deemed as reasonable. In this case, individuals who are facing action as part of a rule prohibiting pets that are not included in the declaration have a better chance to fight the ruling and keep their pet.
This is why potential condo owners who have pets or would like them in the future should carefully read the condominium’s declaration and rules. For condominiums, it means that they should be mindful of what types of pets should be prohibited from living in the building. The onus is on the condominium to explicitly inform unit owners and renters of the applicable rules, and must consistently and regularly enforce them. Failure to do both of these things puts the condominium at risk of having a court reject the restrictions they have placed on pets.
The substance of this article is designed to present a comprehensive example of the subject matter regarding pet removal in a condominium. Specialist advice should be inquired regarding your particular circumstances. If an individual owns a pet or has an intention of doing so in the future, an owner should seek legal advice from a legal representative to confirm any pet restrictions in the declaration or rules prior to committing to a condominium unit.
1 – Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850
2 – Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2009)
3 – Waterloo North Condominium Corporation No. 198 v. Donner, 1997 Can LII 121177 (ON. S.C.)
4 – Niagara North Condominium Corp. No. 125 v. Waddington