While no pet provisions in a condo’s declaration are generally not meant to be flexible, a recent CAT case shows when it may be appropriate for there to be exceptions.
Teno v Essex Condominium Corporation No. 28 illustrates how condo corporations that have deviated from their declarations can attempt to rectify the issue.
In Teno, the declaration prohibited pets. However, over the years a number of exceptions had been made for cat owners in the building. It was not until other pet owners wanted to be granted exceptions for other pets that the condo took action and attempted to reconcile the declaration restriction with the status quo of permitting cats.
The issue in this case was not the inconsistent application of the pet free provision (there is no doubt that permitting cats was inconsistent with its declaration), but rather, the creation and implementation of a rule that permits existing cats to remain in the building.
Mr. Teno is a resident who bought into the property, at least in part, because of its pet free provision. He took issue with the fact that a rule was created which allows for existing cat owners in the building to keep their cats, despite the clear prohibition in the declaration. Under the rule, the cats currently residing within the building would be considered “legacy cats” and owners would not be able to replace these cats upon their passing. Once all of the legacy cats died, compliance with the declaration would be achieved. As part of the implementation of the rule, the condo took photos of the cats and imposed restrictions including that the legacy cats must remain in their owner’s units.
The tribunal found that the rule was a reasonable solution to the issue of the condo’s inconsistent application of the pet free provision in its declaration. The tribunal ultimately found that the rule was not contrary to the legislative scheme of the Condominium Act and was valid and enforceable.
In its decision, the tribunal references a prior Ontario Superior Court of Justice case, Metropolitan Toronto Condominium Corporation No 949 v Staib. In that case, the resident had brought her cat with her when she moved into what was meant to be a pet free condominium. The condo did not request that the cat be removed until 10 years after it had begun living there. At that point, the court found that enforcing the provision against her would not be reasonable.
While every corporation has an obligation to enforce the declaration, a failure to do so for a period of time can render a provision unenforceable, at least temporarily. As confirmed by CAT in the Teno case, passing a rule which recognizes the period of non-enforcement, exempts existing pets, and prohibits any new pets is a practice that is permissible in order to come into compliance with the declaration and be able to enforce compliance once again.
In Metropolitan Toronto Condominium Corporation No. 736 v Verstova, for example, the condo corporation had a declaration provision prohibiting pets. At one point, they passed a rule permitting pets, then passed a rule similar to the one in Teno permitting only legacy pets. The unit owner violated the rule by having a non-legacy cat in the unit. She was ordered to remove the cat from her residence (and pay costs associated with damage the cat had caused to the property).
The exact context and circumstances will play a large role in any particular case, as it did for the tribunal in Teno. If your corporation is trying to rectify previous non-enforcement, reach out to any member of our team for assistance.
Special thanks to our summer student, Alexandra Egi, for her assistance in drafting this blog.