Real Estate

Even condos that allow pets won’t tolerate nuisance animals

By Jennifer Brown, AdvocateDaily.com Senior Editor

There’s nothing in the Condominium Act that specifically speaks to a ban on pets, but condo corporations can create restrictions and rules to enforce the type of animal and how many an owner or resident can have in a unit, says Toronto condo and human rights lawyer Deborah Howden.

Howden, a partner with Shibley Righton LLP, tells AdvocateDaily.com that s. 58 of the Condominium Act speaks to a condominium corporation’s rules. Specifically, it states a condo corporation is entitled to enact rules for the following reasons:

  • to promote the safety and security of owners and their property, as well as the corporation’s assets
  • to prevent unreasonable interference with resident’s use and enjoyment of units and common elements

In Ontario, there are guidelines related to the Human Rights Code on what condominium boards can either prohibit or restrict.

“A pet ban means you may not have any pets at all in the unit, while a pet restriction means that you can have a pet, however, there are guidelines on either the types or number of animals you can have in the unit,” says Howden.

For example, she says it is common to see condominium documents spell out in a declaration or rule as to the types of pets condominium residents can’t keep.

“It speaks to whether you and your pet have an unreasonable interference with residents’ use and enjoyment because there is barking or the animal is a nuisance,” Howden says.

Other restrictions may limit the number of pets allowed and/or the animal’s size.

“That may mean that you can’t have two pets in the unit, or there may be a height or weight limit,” she says.

Typically, livestock, fowl, or other such animals are not allowed.

“Even though you may be able to keep one dog that is under 25 pounds, the nuisance issue is another facet to consider. Most condominium corporations' governing documents would contain a provision regarding bothersome pets,” Howden says.

“This relates to behaviour. If the pet acts in a manner that is dangerous to other residents or creates another nuisance — for example, persistent barking, lunging at other owners or pets, or continual defecation on the common elements — then the board can typically require the pet be removed indefinitely on relatively short notice,” she says.

Pet restrictions come from two areas of the condominium document — in a declaration, which is the corporation's governing document, or by rule.

Howden says if restrictions are contained in the declaration, they do not have to be reasonable. However, if done in a rule, then the restriction has to be reasonable, according to what the courts have said.

“So if you have a rule that says no pets are allowed, the condominium corporation may have difficulty enforcing it,” she says.

“If there is an outright ban in the condominium declaration, because that doesn’t have to be reasonable, it’s enforceable. However, even the declaration is subject to the Human Rights Code, which specifically requires a housing provider to accommodate a disability or other prohibited grounds up to the point of undue hardship, Howden says.

For example, service or emotional support animals are not considered pets because of the assistance they provide to the owner. As such, the corporation is obliged to accommodate those animals up to the point of undue hardship, she says.

“If a particular guide dog barks all night, or lunges at residents, then the Human Rights Tribunal may find that accommodation creates undue hardship. That particular resident may be able to use a different service animal to accommodate the disability,” Howden says.

Even if there is a note from a medical practitioner saying a certain resident needs a particular dog or another support animal, the condo corporation is legally entitled to follow up with any relevant and necessary information and the resident must co-operate in that process, she says.

“The rules apply to tenants and condominium owners equally. Tenants are also bound by the condominium documents of the corporation,” Howden says.

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