An interesting case came out of the Condo Authority Tribunal recently. It dealt with the situation of a condo corporation who had historically not enforced its pet prohibition against cats and who needed to find a way back into compliance.
Is your condo pet-free? What pet-related provisions are in place at your condo? Before you read on, take our quick survey on pets in condos.
Facts of the case
This Essex condo corporation was set up as a “pet-free” condo, with a provision in its declaration prohibiting all pets on common and elements and in units. There were signs at the entrance doors advising of this and new owners were advised of this.
This prohibition was consistently applied against dogs. However, for some reasons and for decades, this prohibition had only been inconsistently and intermittently applied against cats, with the result that cats had been allowed, from time to time, to be kept by owners. The decision reports that at one point, 39 cats lived at the corporation (out of 319 units). This eventually led to some owners seeking an exception for dogs as well.
These requests to allow dogs on the basis that cats had been allowed lead the corporation to the conclusion that it needed to bring itself into compliance. It opted to do so by adopting a rule that would allow the existing cats to stay but not to be replaced and no new cats would be allowed.
A condo owner contested this new rule on the basis that:
- He had bought into a pet-free condo;
- The rule was unreasonable;
- The rule was inconsistent with the declaration.
The declaration provided that “No pet, animal, livestock or fowl will be permitted or kept upon any part of the common elements or in any unit”.
The challenge with bringing the corporation into compliance with its declaration what to determine how to best do this, especially considering that, for decades, it had allowed owners to have cats.
The corporation considered the risks associated with an immediate prohibition against cats (without transition period) but it feared that, in light of its history of non-enforcement, cat owners could successfully challenge a sudden enforcement. It also considered having a time-limited transition period, such as a 5 year transition period. That seemed to have been ruled out as well.
It eventually went with a rule allowing existing cats to remain, but not to be replaced. For a cat to be granted legacy status, those with a cats had to:
- identify their cat
- provide a picture
- agree not to replace the cat
- agree to keep the cat in their unit
This provision allowing “legacy cats” to stay was meant to allow a transition period back into compliance, while respecting the rights of those who had been allowed to have a cat. This rule was also seen as the best way to avoid litigation with cat-owners (in the context of a long history of non-enforcement).
I note in passing that another option may have been to consider amending its declaration to allow pets. In fact, it appears that a group of owners petitioned to have a meeting of owners to vote on amending the declaration, but the corporation instead adopted the rule, which was submitted to a vote.
Rules cannot be inconsistent with the declaration
As our readers know, a rule must be reasonable and it cannot be inconsistent with the declaration. In this case, a rule allowing legacy cats was clearly inconsistent with a declaration prohibiting all pets. Moreover, a condo corporation has an obligation to enforce its declaration.
But the question here is how can a condo corporation who has historically ignored its pet restriction bring itself back into compliance?
The Condo Authority ruled that this transition rule was permissible in the circumstances of this case as it was a clear “bridge” to transition from non-compliance to compliance with the no pets provision. This transition rule was an attempt to balance the provisions of the declaration with the interests of those who had been allowed to have cats in their units, for years, due to historic non-enforcement. By restricting legacy cats to the existing one (and not allowing new ones) and by restricting these cats to the units, the rule showed a clear intent to move back to compliance and also provided some protection to the unit owners who wished to live in a no-pet condo.
While cats have nine lives, they will only be allowed to live one of them at the condo.
There are a couple of takeaways from this case:
- Condos should consistently and systematically enforce all of their existing rules to avoid finding themselves in this situation;
- Condos cannot adopt a rule that is inconsistent with their declaration;
- This case is to be seen as an exception and condo corporations should not rely on it as a way to go around their declaration by adopting an otherwise inconsistent rule.
You can read the case here.
Don’t forget to take our quick survey on pets in condos.