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SHOULD I STAY or SHOULD I GO? A Condo Pet’s Dilemma

“If I go there will be trouble. And if I stay it will be double.” – The Clash

There is often more to a condo pet dispute than simply whether the pet stays or goes; mediation provides an opportunity for better resolution through a conciliatory approach.

It can be easy for those not directly involved in a condominium pet issue to overly simplify the matter and consider the situation as only a question of whether the pet stays or goes. Even if the issue does ultimately boil down to a stay or go dilemma, the way in which the answer is determined and the treatment of those involved along the way can have a long-term impact on the harmony of a community and the reputations of those within it. For that reason, I encourage parties to a condo pet issue to consider mediation. Shared understanding and the consideration of creative options to challenging situations can preserve relationships and provide greater comfort for everyone involved. 

While some condominium Boards may not want to be viewed as anti-pet, Section 17(3) of the Condominium Act, 1998 (the “Act”) places a duty upon condos to take steps to enforce compliance with the Act, along with the community’s Declaration, By-laws and Rules. Pet restrictions typically exist within the Declaration or Rules and if they exist, they should not be ignored. The courts have come down hard on condominium corporations who have failed to enforce. This does not change when pets are involved.

Pet issues can be complicated in a number of ways, including the specific restrictions that apply to the community, the nature of circumstances and who is involved. In my experience, while conflict involving condo pets can present in seemingly as many different ways as there are breeds of dogs, the most common fall into one of two categories:

(1) Presence – if the pet is allowed to be part of the community; and

(2) Nuisance – if the behaviour of the pet warrants its eviction from the community.

Presence – Should I Stay?

While applying the pet restrictions which exist within a condominium’s governing documents can often determine if a pet is permitted, it is not always that simple. Circumstances can arise where a pet may be allowed despite appearing to be a violation:

(a) Grandparenting – if a condominium introduces new pet restrictions, pets that were part of the community prior to the new restrictions taking effect may be free from them. This does not mean that new pets would be permitted, rather that those who were already part of the community may be entitled to remain as they pre-date the restrictions.

(b) Acquiescence – if pet restrictions have not traditionally been enforced, someone already with a pet in a condominium may have an argument that he/she relied on the condo “sleeping on its rights” to his/her detriment when enforcement is subsequently attempted. While it can involve costly and time consuming court proceedings, this argument has successfully allowed older pets to remain notwithstanding restrictions in the past (in part due to the difficulty in finding older pets a new home) though, like grandparenting, would not necessarily permit new pets to join a condo community.

(c) Medical Reasons – there are occasions where pets are permitted to remain in violation of restrictions due to a documented medical need of the pet owner. Service animals, for example, may be permitted in a no-pet condominium to accommodate the special needs of a resident. Medical exemptions to permit pets that would otherwise not be allowed are increasingly becoming a contentious issue – both in terms of determining the degree of expertise required to justify such a medical need and when countered with an opposing requirement for medical accommodation (i.e. a resident specifically having sought out a no pet condo due to severe allergies) or conflicting human rights.

Particular exemptions can serve as an important reminder to pet owning potential condominium residents that they should not simply look around and make assumptions as to a community’s restrictions. What you see is not necessarily what you get as there may be an explanation as to why a pet observed when viewing a property is permitted and others are not. Reviewing a condominium’s documents and making specific inquiry about pets is important for pet owners to do in assessing if a particular community is a good fit for them.

Nuisance – Should I Go?

It is safe to assume that every condominium in Ontario has some degree of restriction surrounding pets. While some do not permit pets at all, those that do may restrict type, size, number, etcetera. Condominiums with minimal pet restrictions can still allow for circumstances where a pet may be evicted from the community - even if relying on the Act alone for the justification to do so (Section 117 speaks to preventing a condition or activity to exist which is likely to damage the property or cause injury).

The governing documents of many “pet friendly” condominiums empower the Board of Directors and/or property manager to determine if a pet poses a nuisance and require the removal of a pet deemed to be a nuisance. While a layer of complication is added due to variance of particular restrictions by individual community, the circumstances which give rise to a nuisance allegation can also prevent things from being kept simple:

(a) Taking the Fall - the pet itself may not be doing anything wrong; however, the way that its owner behaves may give rise to the pet being considered a nuisance. An example is the circumstance of an owner failing to pick up after his/her pet and the pet taking blame.

(b) Differences of Opinion – a condominium may be asked to fulfill its enforcement duty in a situation where neighbours may not see eye-to-eye. While one may consider their neighbour’s pet to be unreasonably disruptive, the pet’s owner may disagree and view their neighbour as being overly sensitive. Much conflict surfaces as a result of people viewing circumstances differently, the added involvement of the condominium corporation can complicate matters.

(c) Lack of Awareness/Undertaking – a pet owner may have no idea that his/her dog barks and disrupts neighbours when left alone or know of the detrimental impact to residents below when their pet relieves itself on the balcony.

A nuisance circumstance may be easily curable, but can get complicated by perceptions of threats and ill intentions.

Why Mediate

There can be more to pet issues in condominiums than initially meets the eye. The mix of the duty to enforce, a pet being considered a member of the family and a lack of information contributing to the escalation of issues can be a troubling formula for anyone wishing to live harmoniously in community. Mediation provides the opportunity for greater understanding – both in terms of the “why” behind actions and decisions as well as the reality of circumstances.

The point of mediating is not to prove someone wrong and you right, nor is it to punish others for their actions. Rather, mediation provides the opportunity to look forward together and examine ways to improve the situation. Even if a pet ultimately must be removed from a condominium community, mediation can allow for the consideration of challenges, timelines and options to bring about compliance in the best way possible.


By Marc Bhalla - Autumn 2014
Hons. B.A., Q. Med. - Mediator and Senior Clerk

Ext:  811
Email:  mbhalla@elia.org 
Toll-Free:  1-866-446-0811  
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All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.
 
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