IT FOLLOWED ME HOME... CAN I KEEP IT?
A BRIEF LOOK AT PETS IN CONDOMINIUMS.
The subject of pets is at or near the top of the list of
divisive issues in strata corporations. There are likely a number of reasons
for this. One of them may be that people tend to strong views one or way or the
other. When the owners proceed to address the issue of pets, they will need to
decide a number of things from whether or not to permit them to how to regulate
them. This article will hopefully provide some food for thought.
The Strata Property Act addresses pets in only a
couple of places; a grandfathering provision in section 123(1) and Standard
Bylaws 3(3) and (4). (Regulation 17.12 addresses the application of Standard
Bylaw 3(4) when it came into effect. In particular, it grandfathered any pets
that are not permitted by that bylaw but which resided in a strata lot as of
January 1, 2002).
Standard Bylaw 3(4) provides:
(4) An owner, tenant or occupant must not keep any pets on
a strata lot other than one or more of the following:
(a) A reasonable number of fish or other small aquarium
animals;
(b) A reasonable number of small caged mammals;
(c) Up to 2 caged birds;
(d) One dog or one cat.
This is supplemented by Standard Bylaw 3(3), which
provides:
(3) An owner, tenant, occupant or visitor must ensure that
all animals are leashed or otherwise secured when on the common property or on
land that is a common asset.
As of January
1, 2002 these two bylaws became bylaws of every strata corporation unless a
contrary bylaw was already filed in the Land Title Office. Strata corporations
could also amend or replace it in a subsequent bylaw amendment package. These
bylaws address the basic issue that should be covered in any pet bylaw should,
namely the number and type of pets permitted and the pet owner’s responsibility
for the conduct of their pet.
When drafting
a pet bylaw it is best to decide what type and quantity of pets are to be
permitted. (Rules cannot deal with pets, as they do not govern strata lots).
The bylaw, as is the case with Standard Bylaw 3(4), should be drafted to state
what pets are permitted. Everything else would, as a matter of course, not
be permitted. There is no need in that situation to prohibit “exotic pets” (a
term which might be vague enough to be unenforceable), reptiles, etc. The
danger with creating a list of “prohibited pets” is that if one misses a
certain type of animal in the list, then it is permissible to keep it. The
terms “domestic animals “ and “household pets” should also be avoided.
The conduct of
pets and an owner’s responsibility for the same are also key issues to be
addressed in any pet bylaw. Strata corporations will need to decide if pets
need to be leashed, whether they are to be carried while in the hallways, etc.
While it seems obvious, there should also be a bylaw making a pet’s owner
responsible to clean up any mess made by the pet on the common property. This
then permits the strata corporation to charge the cost of cleaning up such a
mess back to the pet’s owner under section 133 of the Strata Property Act.
Noisy pets are
also an issue of concern. The provisions of Standard Bylaw 3(1) (or its
equivalent if different bylaws are filed in the Land Title Office) broadly deal
with noise issues. However, many strata corporations pass bylaws that require
an owner to remove a pet that the council deems to be “nuisance”. While
practical, such a bylaw does open itself up for abuse by a council. Such bylaws
should always include a provision that the strata council must act reasonably
in so deciding (certainly the court would impose such a condition when
reviewing the actions of the strata council in ordering a pet removed as it did
in Strata Plan No. NW 498 v. McNeilly [1989] BCJ No. 859 Vancouver Registry BCSC).
When dealing
with pet bylaws, strata councils should keep in mind their duty under section
26 of the Strata Property Act to enforce the bylaws. This means that the
council cannot grant exemptions from or make exceptions to a no pet rule
(unless the bylaw itself grants it the discretion to do so). Prospective
purchasers, as is often the case, cannot get permission in advance to have a
pet where the strata corporation’s bylaws prohibit pets. As well, the council
must be prompt in enforcing the pet bylaw. In Metropolitan Toronto
Condominium Corp. No. 601 v. Hadbavny (2001), 48 RPR (3d) 159, the court held that the
strata corporation’s widespread and general failure to enforce a pet bylaw was
reason enough to permit Mr. Hadbavny to have a pet despite the existence of the
bylaw.
The protection
of the right to have a pet is a key concern whenever a pet bylaw is either
introduced or amended. Section 123(1) of the Strata Property Act
provides such “grandfathering” and states that:
(1) A bylaw
that prohibits a pet does not apply to a pet living with an owner, tenant or
occupant at the time the bylaw is passed and which continues to live there
after the bylaw is passed.
The key aspect
of s.123 (1) is that it grandfathers a particular pet, not the right to
have a pet. In other words, if an owner had a dog and the strata corporation
passed a bylaw prohibiting dogs, that owner could keep that particular dog
until it dies notwithstanding the passage of the bylaw. The owner could not,
however, buy a new dog. It makes no difference in that scenario whether the
owner is an original purchaser or not. It is the pet itself, which is
grandfathered. There is nothing, however, that keeps the strata corporation
from putting broader grandfathering provisions in the bylaw itself.
Owners will
often assert that the outright prohibition of pets is not legal. With respect,
the writer disagrees. If that were the case the Strata Property Act
would not contain the provisions of s.123 (1) but rather a clear prohibition
against bylaws, which prohibit pets entirely. There are, however, exceptions to
a “no pet bylaw”. The first of these applies to guide animals. They are
exempted from such a bylaw under the provisions of the Guide Animal Act.
The second, which I will discuss in more detail below, is for persons with
disabilities (provided that they can prove that such a bylaw is discriminatory
under the provisions of the Human Rights Code).
The following
sections of the Human Rights Code (which I have abbreviated) are
relevant to the discussion at hand:
Discrimination
in accommodation, service and facility
8 (1) A person must
not, without a bona fide and reasonable justification,
(a) Deny to a
person... any accommodation, service or facility customarily available to the
public, or
(b)
Discriminate against a person... regarding any accommodation, service or
facility customarily available to the public because of... physical or mental
disability... of that person
Discrimination
in purchase of property
9 A person must
not
(c)
Discriminate against a person... regarding... the purchase or other acquisition
of a... dwelling unit, land or interest in land because of the... physical or
mental disability... of that person.
10 (1) A person must
not
(b)
Discriminate against a person... regarding a term or condition of the tenancy
of the space, because of the... physical or mental disability... of that
person.
In Konieczna
v. The Owners Strata Plan NW2489 2003 BCHRT 38 it was clearly held that
the provisions of the Human Rights Code are applicable to strata corporations.
Broadly speaking then, if an owner or tenant who has a disability (which the
jurisprudence surrounding the Human Rights Code defines quite broadly)
were able to prove that having a pet (other than a guide animal) was critical
to the treatment of their disability, then a bylaw, which prevented them from
having a pet, may be considered to be discriminatory. I say “may”
because the law in British Columbia does not seem clearly settled on this
point.
The debate
over pet bylaws has gone on in the Ontario courts for a number of years. There
are a number of cases dealing with the topic. The issue of pet bylaws and
disabilities appears to have come to a head in the late 1990's with the
decision in Niagara North Condominium Corp. No. 46 v. Chaissie (1999)
173 DLR (4th) 524 wherein the court held not only that prohibition
on pets (in this case a cat) was unreasonable but also a violation of the
Ontario Human Rights Code given that Mrs. Chaissie suffered from
depression (a disability) and her cat was therapeutic for her. However, in a
more recent case, Waterloo North Condominium Corp. No. 186 v. Weidner
(2003) 65 O.R. (3d) 108, the court in Ontario began to back away from the
approach taken in Chaissie. Nonetheless Chaissie appears to
remain good law in Ontario.
The only
reported case in British Columbia that touches on this particular issue is Strata
Plan NW498 v. Pederson (1999), 124 BCAC 282 (BCCA) wherein the court
held that the fact that the owner in question suffered from several ailments
and benefited “considerably from having the pet” was not sufficient to prevent
the enforcement of a no pet bylaw. One should not take this case to mean that
the reasoning in Chaissie will not make its way into British Columbia
case law. Human Rights issues are becoming more prevalent in strata property
litigation and it would not be surprising to see this issue before the courts
in British Columbia in the near future. A follow up article may be in order at
that time.
Shawn
M. Smith is an associate lawyer with the law firm of Cleveland & Doan
located in White Rock and may be reached at 604-536-5002. This article is
intended for information purposes only and nothing contained in it should be
viewed as the provision of legal advice.