Fido Must Go - When Can A Condo Corporation Prohibit Pets? (Aka - the story of Simon the Greyhound)
For many people, pets are more than furry little responsibilities, they are akin to valued family members and the thought of severing the pet/person relationship is traumatic. What happens then if the condo where a pet owner lives or wishes to live prohibits pets? The story of Simon the greyhound answers this legal query.
Simon's owner purchased a condominium unit in a building that formerly had allowed pets. At the time, she saw cats in the windows of several units and saw one dog being walked through the common area of the building. Simon's owner told her real estate agent that she had a pet and that she wanted a building that allowed pets. An offer was made on a unit and subsequently accepted and Simon and his owner moved in.
The building in question prohibited pets. Despite that, for many years, that prohibition had not been enforced. Prior to Simon's owner making her purchase, the condo board, however, decided to enforce the prohibition. The board sent out notices advising that they would be enforcing the no pet prohibition. They allowed that any unitholder who had an existing pet could register that pet, thereby grandfathering an exception to the prohibition.
The estoppel certificate for the condo unit was included in the exchange of documents that facilitated the unit transfer. That certificate clearly stated that pets were currently prohibited. Despite this notice, the transfer competed and Simon and his owner moved in.
Some time later, the condo board notified Simon's owner that Simon was not allowed. The owner arranged for Simon to live with her parents for a short while and then brought him back. The condo board sued to have Simon removed.
In trial, Simon's owner argued that she should be allowed to keep Simon. She claimed that the blanket prohibition was unreasonable (condo declarations an make rules but the rules must be "reasonable"). She further claimed that she was depressed and needed Simon to relieve stress. Finally, she claimed that the condo board had waited too long to enforce its rights.
The judge rejected all three arguments. With respect to the reasonableness of the blanket prohibition, the judge ruled that such a prohibition was reasonable. A condo declaration can prohibit all pets. The judge then turned his attention to whether depression triggered a right to have a pet under Human Rights legislation. The judge rejected this argument on the basis that, in testimony, Simon's owner admitted that she didn't "need" Simon. This was not the case of a Seeing Eye dog that was assisting a disabled person but rather a situation where a person derived pleasure from the companionship of a pet. Finally, the judge rejected the argument that the condo board waited too long to enforce its rights. While the board had not enforced the rule historically, when it resolved to do so, it took steps to notify unitholders and potential purchasers of unitholders. Simon's owner had received such notice in the form of the estoppel certificate and had made no distinct inquiries as to whether the existing pets demonstrated that the prohibition would not be enforced.
The Lesson: If you want to ensure that your pets can live with you in a condo, ensure that there is a) no probation or that b) any prohibition is not enforced. Have your realtor add a provision to the Agreement of Purchase and Sale that the sale is conditional on pets being allowed. Notify your lawyer that a pet prohibition is a deal breaker and have him or her obtain notice in writing that any prohibition will not be enforced. A few extra dollars spent early on will ensure that your furry responsibility an reside with you.
Waterloo North Condominium Corporation No. 186 v Weidner, 2003 CanLII 44549 http://www.canlii.org/en/on/onsc/doc/2003/2003canlii44549/2003canlii44549.pdf
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