As a real estate agent, you probably have many clients who are pet owners. If they are considering buying a condo, you should be aware of some of the issues pet owners may face. This can be a touchy issue because a pet is often your client’s best friend and part of their family! Read on to learn about some fascinating issues related to pet ownership in condos.
- 1 Who Decides Whether You Can Keep Your Pets in Condos?
- 2 What Happens If You Buy a Condo That Has a No-Pet Policy?
- 3 Pet Owners Who Fought Back To Try To Keep Their Pets In Condos
- 4 What Happens If Pets Are Allowed In The Condo?
- 5 Our Final Two Cents
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Who Decides Whether You Can Keep Your Pets in Condos?
In our previous article, we introduced some unique challenges faced by condo owners. As mentioned in that article, condo owners are obliged by law to comply with the condominium’s declaration, by-laws, rules and agreements.1
What Happens If You Don’t Listen
Condominium unit owners should know that not only can the condominium corporations sue them to obtain an order to enforce the rules of the condo and recover legal costs for doing so, but they can also register a lien against their unit. If a corporation obtains an award of damages or costs in a legal proceeding against an owner or occupier of a unit, the damages or costs will be added to the common expenses for the unit.2 If these amounts are unpaid, the condominium corporation has a right to register a lien against the unit.3
Subject to the condominium board, a condo owner may or may not be able to have pets, and if pets are allowed, the condo board will likely stipulate what is allowed for the pets. If you have sighted pets in condominium buildings, you may have wondered why dogs are often leashed or carefully kept in the arms of their owners during their trip from the individual units to outside. Such prudent owners are well-advised to keep a careful eye on their pets, as you will see in the following cases.
What Happens If You Buy a Condo That Has a No-Pet Policy?
What happens when you move to a condo and find out that there is a no-pet policy? What can happen if you kept a pet in a condominium that prohibits pets?
The Story About a Forbidden Parrot
Here is a chilling story you will not forget from Metropolitan Toronto Condominium Corporation v. Bazilinsky.4 Mr. and Mrs. Bazilinsky were owners of a unit in a condominium that had a “no pet” provision in its declaration. They had a bird in their unit. The Bazilinsky’s say it was for two weeks, the condo board alleges it was longer. The condominium board sued the owners for violating the “no pet” provision and for an order to enforce their compliance with a whopping bill of costs in the amount of $41,599.45!5 The owners attempted to sell their unit but were unable to do so due to the lien placed by the condominium corporation. Thankfully, Justice Backhouse at the Superior Court of Justice was sympathetic to the owners’ plight. The Certificate of Lien that was registered against the owners’ unit was ordered to be vacated and the costs were adjusted to a significantly lesser amount of $1,830.47.
This case may serve as a cautionary tale for those who may underestimate the importance of complying with the condominium corporation’s no-pet rules.
Pet Owners Who Fought Back To Try To Keep Their Pets In Condos
Some brave pet owners tried their luck in bringing their cases to courts in an attempt to keep their pets in their condos that prohibited pets, with varying degrees of success. We prepared a brief summary of interesting cases for you:
When Pets Are a Preference But Not a Necessity
In Niagara North Condominium Corp. No. 125 v. Kinslow,6 the owner claimed that her two cats were medically necessary for her disability due to a brain injury and bipolar disorder. She claimed that the condominium corporation’s no-pets declaration would contravene her right to “equal treatment with respect to the occupancy of accommodation, without discrimination because of […] disability […]”.7 Justice Quinn succinctly wrote, “Because the respondent has not shown that her cats are a necessity, […] The cats must go.”8.
Courts are generally less sympathetic in cases where pet owners are seeking to keep their pets in a no-pet condominium due to their preference, but not as a result of a real necessity. While it is acknowledged that pets provide comfort to the owner, the test is whether the pet owner can live without pets based on evidence of whether the pet owner is dependent on their pets physically, emotionally or for any other medical reasons9.
When Pets Are a Necessity For the Owner
On the other hand, where an 85-year-old hearing impaired tenant with a disability moved in with her hearing aid dog into a condominium with a no-pets provision in the declaration, it was found that the condominium’s enforcement of no-pets provision had contravened the Human Rights Code.10 Justice Salhany found that the elderly tenant required the assistance of her dog for her independent functioning, and that prohibiting her aid dog would effectively amount to prohibiting her from living in the condo unit (p. 248):
[…] In my view, the Human Rights Code precludes enforcement of the declaration if it would result in the discrimination of Ms. Donner’s mother because of her specific handicap. […]
Similarly, in North Condominium Corp. No. 46 v. Chassie,11) a condominium corporation applied to Court for an order to direct the owner to remove their cat from their unit pursuant to the condominium’s Declaration and Rules prohibiting pets. The owner had a 16-year-old Siamese cat and claimed that causing her to give up her cat would be “cruel and inhumane”12 and cause emotional distress (Ibid., para 28)). Justice MacDonald recognized the importance of accommodating the incapacitated and elderly pet owners for whom their pets were a source of comfort and companionship in at para. 89 of the decision:
[…] as a person becomes older, he or she may lose a spouse and, for the first time in his or her life, begin to live alone. Should that person be forced to give up his or her condominium home if he or she tries to avoid depression and loneliness by acquiring a small four-legged companion? […]
My consideration of the law and its development and of societal changes over the last few decades has led me to the conclusion that a total prohibition of animals and, in particular, of dogs and cats, is not reasonable today
So What Can We Conclude From These Cases?
So what can you make of these cases? Well, there is no hard and fast rule, in that there appears to be a mix of views in what would achieve the right balance between a unit owner’s duty to comply with the rules of the condominium corporation and the condominium corporation’s duty to accommodate the pet owners based on their special needs. Subject to the facts of a case and legal developments at the time in question, all hope may not be lost for unit owners with valid claims under the Human Rights Code, such as owners with disability requiring guide dogs.
Overall, the Condominium Corporation has the authority to enforce rules concerning pets, particularly, regarding the non-pet policy. If such rules are not complied with, there could be very costly consequences for the unit owner. Therefore, for potential condo buyers with pets, it would in their interest to review the condominium documents to understand the condominium corporation’s pet policy.
What Happens If Pets Are Allowed In The Condo?
Suppose that you lucked out and found a condominium that allows pets. Does that mean your pet can get away with anything? The quick answer is no, because as a pet owner you have an obligation to control your pet and not cause nuisance to your neighbours. Your condominium corporation will likely have detailed rules concerning the control of pets especially in common areas. If you do not comply with such rules, as an owner of the offending pet, you may be subject to lawsuit(s) from the condominium corporation and/or the neighbour(s) and/or face other costly consequences as mentioned above (see “What happens if you don’t listen” above).
You Must Clean Up After Your Pet(s)
In Muskoka Condominium Corporation No. 39 v. Kreutzweiser,13, a condominium occupant (whom we shall call the “cat owner”) had repeatedly received and ignored complaints from his neighbours. The complaints were about his two cats roaming freely, defecating and even leaving dead prey in the common elements of the building. According to the condominium’s declaration: “all dogs and cats must be kept under personal supervision and control and held by leash at all times during ingress and egress from the unit and while on the common elements of the buildings or on the grounds.”14. The Court agreed with the condominium corporation’s declaration deeming the offending cats as a nuisance and ordered that the cats be permanently removed15. Furthermore, Justice Wood found that the “blameless” neighbours should not have to pay for the legal costs incurred as a result of the cat owner’s negligence. The cat owner was ordered to pay $19,657.23 in costs to the condominium corporation!16
You Must Maintain Control of Your Pet
Even where a pet owner requires a pet due to disability and the condominium corporation makes a reasonable accommodation by allowing the said pet, the pet owner still must control his or her own pet. In Devine v. David Burr Ltd. and others (No.2),17, Ms. Devine was a 55-year-old hearing-impaired tenant in a condominium with a no-dog policy. Her condominium corporation accommodated her by allowing her to retain her assistance dog. The difficulties arose when her dog, “Max”, became the subject of various complaints from her neighbours who complained of his barking, lunging, snarling at, and frightening them in the common areas. The neighbours were also upset by Ms. Devine not promptly cleaning up after her dog and causing a foul “dog-related smell”18. The conclusion reached was that evicting Ms. Devine for her failure to control her dog did not contravene s. 10 of the Human Rights Code,19 which prohibits discriminatorily denying tenancy to persons with physical disability.
Our Final Two Cents
As condos are becoming a more popular choice for home ownership, we can expect to see further development in this interesting issue surrounding owning pets in condos. So what can you do if your clients are thinking of buying a condo and they have a beloved pet? If keeping a pet is important to them, they should bring this to their lawyer’s attention. It is important that they know what they are getting into before buying a condo by carefully reviewing the condominium documents with a real estate lawyer.Did you find this article useful? If so, receive even more value by downloading a FREE copy of our exclusive “Ultimate Checklist for Condo Buyers”. Help your clients protect their interests with this useful resource..
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Park & Jung LLP believes in empowering our clients by legal education. The information contained in the article is for informational purposes and is not intended as a legal advice or a substitute for legal counsel. It does not guarantee to contain full, complete and accurate information and hereby disclaims all liability in respect of actions taken or not taken based on any or all contents of the article.
s. 19(1) of the Condominium Act ↩
s. 134(5) of the Condominium Act ↩
M. Klein, Deputy Judge, Carriero v. Carli, 2013 CanLII 88835 (ON SCSM) at para 15 ↩
2012 ONSC 1187 ↩
Ibid., at para 20 ↩
2007 ONCA 184 ↩
subsection 2(1) of the Human Rights Code, R.S.O., 1990, c.H. 19 ↩
Supra footnote 4, para 42-3 ↩
Supra footnote 4 at para. 35 ↩
Waterloo North Condominium Corp. No. 198 v. Donner (1997), 36 O.R. (3d) 243 ↩
1999 CanLII 15035 (ON SC ↩
Ibid., para 10 ↩
2010 ONSC 2463 ↩
Ibid., para 4 ↩
Ibid., para 13 ↩
Ibid., para 16 ↩
2010 BCHRT 37 ↩
Ibid., para 57 ↩
R.S.B.C. 1996, c. 210 ↩