Condominium owners often ask about various issues relating to pets, particularly if certain pets are permitted to reside in a building. The first thing a condo board should do when a pet issue arises is to check the condominium documents. Provisions prohibiting or restricting pets are found in a condo corporation’s declaration and rules.
The courts have held a prohibition on pets contained in a corporation’s declaration is valid but a prohibition on pets contained in the rules is not. So, if the declaration is silent about pets, it’s not possible for a corporation to prohibit pets in the rules. In order to prohibit pets, the corporation would have to amend its declaration, which requires the written consent of owners representing at least 80 per cent of the units. It is, however, permissible for a condominium to impose other restrictions on pets; for example, the size or number of pets. Provisions such as these in the rules are valid, as are rules that prohibit dangerous and nuisance animals.
Assuming the corporation’s pet restrictions are valid and clearly written, what should a condo corporation do if there is a pet on the property that is in breach of the condominium documents?
Board members don’t have the discretion to decide not to enforce the provisions of the condominium documents; they are duty-bound to do so. Owners are not only bound by the rules, they are entitled to insist all owners are similarly bound. It’s important for the board to promptly and consistently enforce the pet provisions in the condominium rules. If it doesn’t, then it may find that the court will refuse to enforce them.
A corporation may find a “three strikes” approach to pet enforcement useful.
The first step is for management to send the unit owner a warning letter that outlines the breach and requires the owner to rectify the breach or, where applicable, permanently remove the pet from the property within two weeks.
If the unit owner fails or refuses to do so within the time specified, a second, more forceful warning letter should be sent by management. This letter should state that: the breach was not rectified; the unit owner has a final opportunity to comply within a specified period of time as the board may determine, acting reasonably; if the breach is not rectified by the time specified, the corporation may seek advice from, or refer the matter to, its solicitors; and the legal costs incurred by the corporation arising from referring the matter to the corporation’s solicitors will be borne by the unit owner in accordance with the indemnification provisions in the corporation’s declaration.
If the unit owner still does not comply, the next step is to refer the matter to legal counsel. The letter from legal counsel is similar to the last letter sent by management but includes more exact estimates of the legal fees associated with compliance proceedings. The warning letter from legal counsel will state that the legal expenses incurred by the corporation to ensure compliance will be charged back to the unit owner by registering a lien against title, including the cost of the letter. Often, the receipt of this letter is a key component to securing compliance.
If, however, the issue is still unresolved, the board, in consultation with its legal counsel, will need to determine next steps – mediation or, in some cases, a court application.
Barbara Holmes is a lawyer at Heenan Blaikie LLP where her practice focuses on condominium development and condominium corporation matters.
