Wednesday, January 28, 2009

Pets in Condos

Fur flies in courts over pet bans

Animals face losing battle against condo restrictions But apartment buildings are virtually powerless to prohibit pets.

Why is it that pets can be prohibited in condominium buildings but not in apartment buildings?

Under the Tenant Protection Act, a clause in a residential lease prohibiting the presence of animals in an apartment building is void. By comparison, building rules made under the Condominium Act can prohibit household pets if they are reasonably worded and reasonably enforced. In addition, a pet restriction in a condo declaration is presumed to be valid, whether or not it is reasonable, unless there is a human rights violation.

This results in the strange situation where pets cannot be prohibited in an apartment building, but they can be prohibited in an identical condo building next door, even if it is occupied entirely by tenants. Since 1989, a number of Ontario pets have made legal history by appearing in published court cases involving their right to live in condominiums in this province.

The pets include a 16-year-old Siamese cat in St. Catharines, a "hearing-ear" dog in Waterloo, a 15-pound East York poodle, as well as a wheaten terrier and an Afghan, both of whom lived in the Palace Pier project in Toronto.

Of the five animals in these cases, three were evicted and two were allowed to stay by Ontario courts.

The hearing-ear dog was allowed to stay based on the owner's disability and the protections in the Ontario Human Rights Code. Similarly, the Siamese was not evicted because the board had failed to enforced the no-pets rule for at least eight years.

The latest case to hit the law reports involves Simon, a greyhound dog who lived in a Waterloo condominium owned by Johanna Theresa Weidner. In May, 2001, Weidner and her greyhound moved into a condo she had bought on Hugo Cres., Kitchener. Before closing, Weidner was given a status certificate indicating that no animals were permitted in the building.

Eventually the condominium board issued an eviction notice against Simon. When Weidner failed to remove it from the building, the matter wound up before Justice Patrick Flynn in the Ontario Superior Court of Justice. Weidner argued that she needed Simon because she was suffering from stress and depression, and that her right to keep the dog in her unit was protected by the Ontario Human Rights Code. She argued that the condominium declaration should accommodate persons with identified disabilities. Finally, she claimed that the condo corporation had delayed so long in enforcing its rights that it should be prevented from proceeding against her.

In June of this year, Justice Flynn ruled that a condominium declaration cannot be attacked as unreasonable. All owners are bound by the declaration, and it is "vital to the integrity of the title" of each unit owner.

In any event, Flynn ruled, there was no evidence that a total ban on pets in the building was unreasonable. He added that there was no violation of the Human Rights Code and the board's delay in enforcing its rights did not prevent it from evicting Weidner's dog.

She employed both a real estate agent and a lawyer, and had ample opportunity to be informed about the prohibition from them.Simon was ordered evicted. Different standards apply if the condominium declaration is silent on pets but its rules contain a no-pets prohibition. Under the Condominium Act, a condominium board may make rules for "the safety, security or welfare of the owners and of the property" or "for the purpose of preventing unreasonable interference with the use and enjoyment of the common elements and of the other units." The only limitation on the nature of these rules under the Condominium Act is that the rules must be "reasonable" and "consistent" with the legislation.

Several years ago, the board at the Palace Pier condominium in Toronto passed a rule stating that pets in the building must not exceed 25 pounds. Both Portia, a wheaten terrier, and LuLu, an Afghan, were over the weight limit. Their owners eventually wound up at the Court of Appeal, after a trial judge allowed the dogs to stay.

In 1997, three justices of the Court of Appeal reversed the trial decision and evicted the dogs.

They said the 25-pound dog rule was not an "unreasonable interference with the use and enjoyment of the common elements and of the other units." Even though the Palace Pier rule may not have been the best rule or the least arbitrary, it wasn't necessarily unreasonable.

Tenants don't have these problems.

Animals and their owners can only be evicted if the pets cause a disturbance, trigger a serious allergic reaction in the landlord or another tenant, or are a breed that is inherently dangerous to public safety.

Should the same rules that apply to tenants be forced on condominium owners? Should the law be changed so that all condo owners would be allowed to have pets just like tenants can?

Bob Aaron is a Toronto real estate lawyer. Send questions to Bob Aaron, 10 King Street East, #1400, Toronto, Ontario M5C 1C3, or by e-mail to bob@ aaron.ca , phone 416-364-9366, or fax 416-364-3818.

14 comments:

Gururaj said...

Nice to have pets in condos
dog stairs

B said...

I have to wonder when people create restrictions on animals. Are they aware the a dog who is less than 25# tends to be more noisy and tends to be more snappy than a larger breed? If someone doesn't want an animal in their building out of fear, maybe they should have bought in a pet free building.

Why are we denying someone the right to have a family member because that member is of a larger breed? In today's housing market, single people have no choice, but to buy a condo instead of a house so why are we infringing on their rights any further by not allowing them to a companion in the breed of their choice?

Why are we restricting animals when it tends to be the humans in the buildings who cause all the damage. Can we now restrict who we allow in our building based on looks, breed or size? I think that is called discrimination folks.

Maureen Chantalle said...

I've just now received a letter from my condo manager saying that we have to "find other arrangements for our pet within 2 weeks time".
We are in an independent rental agreement with the unit owners in a condo community. We do not own the unit. We have lived here since mid November. When we applied for tenancy, the add stated that pets were allowed. I would not have even applied otherwise. After we moved in, I read in our welcome package that dogs had been "grandfathered" since 2005 and that dogs in the units previous to that were allowed to stay and no new dogs could be moved in. I asked my landlord about it and he said not to worry about it as everyone in the buildings has dogs.
This afternoon as I waited to board the elevator to bring my beloved four legged family member outside to relieve himself, the condo manager that I had been warned was otherwise "hard to get along with" for lack of a better term, was exiting the elevator on my floor. She looked down at my dog and then up at me and gave me a very pursed mouth look.
Lo and behold, this evening I receive a letter stating that I need to evict my dog by the 31st of January. Is there nothing we can do in all of this? To protect ourselves as paying tenants, to keep precious pets that mean the world to us??
I do not understand all of this.
People should be allowed to have any pet they want so long as it is not causing a disturbance, causing allergy flare ups, destroying property or defecating on the grounds or leaving messes in and around the common elements. This is MY home. The only time my dog sees the outside of this unit is when I take him outside, in which case he is no ones problem but my own.

Elegant Homes in West Toronto said...

You have a lease
The lease is with the owner of the unit
The no pet / pet limitation was described to you when you moved in.
Legal Action on the part of the building management ADJOINED with the legal owner to evict you must occur.
Otherwise the Condo board is spending money without effect.

Someone at Fine and Deo May be able to best advice you.

John?

Maureen Chantalle said...

No, we were not aware of this rule when we moved in. As I stated in my original post, I had replied to an ad for a unit that "allowed pets". We continued with the lease signing when our landlord assured us that pets were allowed. It wasn't until AFTER we moved in, that I read through our Welcome Package, and saw the rule about the "grandfathered" dogs.
I then asked my landlord about this rule that I read and he then AGAIN said not to worry about it.
And what do you mean "Otherwise the condo board is spending money without effect"?
Why on EARTH is anyone spending money to keep SOME dogs out but not all?
If there is a loud, large, barking nuisance of a dog that moved in a month before the amendment, that means that my quiet, meek and otherwise invisible dog has less of a right to live here than that dog does?
If condo owners want to live in a pet free building, why not make the entire building pet free?
This rule does not make any sense whatsoever and since this was NOT our mistake, and we did not willfully sneak our dog into this unit, we should have some sort of protection from this ridiculous situation.

Elegant Homes in West Toronto said...

Give me a ring when you have a chance and I will answer you directly 647 218 2414

deirdre g said...

More and more condos are allowing pets! Definitely glad to see pets being accepted in more places!

makati condo

clara said...

Does it make any sense that a condo who always allowed pets suddenly change their mind, and anyone who recently bought the condo are not allowed to have pets? Only those who already had them gets grandfathered in?

shopTOism said...

Pets or No Pets Rules in Condos are made based on a majority of residents (shareholders) at the annual Board of Directors meeting.

If you want change in your building; you need to be proactive, gather votes, petition and champion you cause.

Lone Primate said...

How do the courts justify this? Why do the rights of renters trump those of property owners? Why are the same rights not available to everyone regardless of type of accommodation? So what if people "vote" for those rules? I don't see how that automatically justifies anything. Can they also "vote" to exclude black people from their collective property?

The courts need to move into a new generation, it's clear to me.

shopTOism said...

Lone, Thank you for your comment.

If you fall behind in your mortgage the bank can take your property by sending a single letter for Power of Sale. Evicting a tenant can sometimes take 6 - 8 months while the tenant squirms, delays and obfuscates the issues with FREE legal aid.

I hear exactly what you are saying and believe that the Tenant Boards need ot become more balanced rather than Tenant tolerant.

David Pylyp
Sales Representative
Accredited Senior Agent

me said...

I am all for people having pets in condo's or apartment buildings.
But what about the dog that never stops barking?
This is unpleasant for all the neighbours and I am sure not pleasant for the dog.

What can be done about this after repeated complaints to the landlord?

Maureen Chantalle said...

A barking dog in any building, or even neighboring house is a noise disturbance. If you've already tried friendlier ways to solve the issue, you have just as much right as someone who is dealing with excessive noise due to loud music, constant screaming, or anything else that can be considered disturbing the peace. If your landlord won't take proper action, then you have every right to report them legally.

arrielle_p said...

I have a pet dog in my condo and thanks God they don't ban in taking care of pet dogs in there. :)

manila condominiums