In March 2016, Danielle Christmas received a less-than-pleasant phone call. The 28-year-old elementary school teacher was at work in Grande Prairie, Alta., when her landlord called to tell her that her puppy, Oakley, was being too loud while Christmas and her fiancé (also a teacher) were at work. “The landlord said, ‘You need to go home and figure out what you’re doing with your dog,’” Christmas recalls. “‘She can’t stay there if this is how she’s going to be.’”
Christmas had been renting the privately owned condo unit in Grande Prairie with her fiancé since May 2015. During the application process, the condo manager asked the couple if they had any pets. At the time, they didn’t, but they said they were thinking of getting a dog in the future. “They didn’t seem too concerned about that,” recalls Christmas. “They said they’d rather get to know us first and see how we were living here before allowing a dog in the condo.”
Their lease stated that smaller dogs were allowed in the condo, and the manager verbally clarified that “smaller” meant less than 45 pounds. So, the couple waited nearly a year before they went to the SPCA and brought home a German Shepherd-Mastiff-Schnauzer-Lab-Collie mix. A mutt, Oakley weighed just 22 pounds. The landlord received a reference check call from the SPCA and later approved, in writing, the couple bringing the dog into the condo.
The call Christmas received at work that day came only a week after Oakley had moved into her new home. The neighbour across the hall had made multiple complaints to management about Oakley’s whimpering during the day. “The crying hadn’t been going on for a long time,” says Christmas. “This was still just the first week that she was alone.”
First, they tried talking to the neighbours, who threatened to call the SPCA and have Oakley removed. Next, they tried to help Oakley adjust to being on her own. In the evenings and on weekends, they’d bring their laptops into the hallway and sit outside their door working so she could get used to not having them inside. “But our landlord said we either needed to get rid of her, or we had to move,” says Christmas. So, figuring it would be less hassle, the couple obliged and agreed to vacate. For the final month that they lived in the condo, they sent Oakley to doggy daycare during the week, which cost $15 a day.
The crying hadn’t been going on for a long time," says Christmas. "This was still just the first week that she was alone
Condos can be notoriously strict when it comes to dogs. “It’s all about wear and tear of common areas,” says Gurlal Kler, a partner at Samfiru Tumarkin LLP whose one-of-many practice areas include condominium law. Understandably, condos don’t want the smell of dog urine or the sight of dog hair in places like the foyer, hallway, or elevator to deter potential renters/owners. They often implement weight restrictions and even outright bans on dogs. What recourse, then, do dog-owners have?
First things first: once you move into the world of condominiums, it’s important to realize that you’re stepping away from the Residential Tenancies Act (RTA) and into the Condominium Act. Condo buildings are not “freehold properties,” meaning unit owners don’t have ownership over both the property and the land it stands on. They own, in essence, only a very small piece of the pie. And renters effectively get given the crumbs. “Every condominium is privately owned,” explains Kler, “usually by a collective bunch of people—making them legal corporations governed under the Condominium Act.” In the condo hierarchy, renters answer to the condo owner, and the condo owner answers to the corporation.
Condo owners elect a board of directors, typically made up of people who own and live in one of the building’s units. The board’s job is to manage the condo building on behalf of the corporation, implement bylaws, and govern the building accordingly. “It’s like a little mini-government,” says Kler. And the bylaws that this mini-government decides to implement with respect to pet ownership will likely override any rights you might have otherwise held under the RTA.
For instance, Ontario’s RTA says it’s illegal in any tenancy agreement to prohibit pets. So, if like many Torontonians, you live in someone’s rented-out basement or second-floor apartment, your landlord can’t legally keep your dog from living there with you. But in the world of condos, your tenancy rights depend on what’s called a Declaration—a thick-as-brick document that contains a condo’s bylaws. “If a condo’s Declaration prohibits dogs,” says Kler, “that trumps the Residential Tenancies Act.”
Condos can be notoriously strict when it comes to dogs. It’s all about wear and tear of common areas
A Declaration is “like the constitution of a condo building,” says Kler. “And the courts have very little discretion to disturb it.” All condo owners should get a full copy of this document. Renters on the other hand, don’t require the entire thing. “They should be provided with a copy of the Rules and Bylaws,” says Kler.
And there’s an important distinction, too, between a “bylaw” and a “rule.” Found in the Declaration, bylaws take precedence over any generic rules the condo has published, say, in a handbook or a flyer in the lobby. The courts could interfere with a rule restricting or banning dogs because it’s not a part of the official Declaration, meaning it’s not considered a bylaw. Lease agreements often stipulate that tenants agree to comply with all condo bylaws, so it would be wise to make efforts to find out exactly what those bylaws are—especially since they override the lease.
If it appears in the Declaration, though, there’s not a whole lot tenants can do—unless of course a human rights violation is at play, such as a tenant who requires a seeing-eye dog. (Though Kler says a case like this hasn’t yet come up.)
Claiming ignorance won’t get tenants far. “It wouldn’t be sufficient to simply say you didn’t know about the bylaw and therefore didn’t knowingly violate it,” says Kler. Generally speaking, condo bylaws can’t be appealed, so prospective tenants are probably better off sticking to buildings that allow dogs.
That didn’t necessarily help Christmas and her fiancé, though, who complied with their condo’s weight restriction rule but were met with other challenges. “Their situation actually sounds like more of a noise complaint rather than a violation of a bylaw,” says Kler. Regardless, if you’re looking at living in a condo and want to bring in a dog, ask to see a copy of the Declaration, or the Rules and Bylaws. If that doesn’t materialize, specifically ask about pet restrictions and bans. If you comply with the bylaws and still receive notice that your dog has to leave, you could, Kler says, potentially go after the landlord for the costs of moving. “Keep in mind, too” he adds, “that a condo typically gives the owner a warning to comply before taking any steps against them.”
All things considered, Christmas believes things worked out for the best. At the end of April 2016, she and her fiancé ended up moving into a house on the other side of town that’s only a five-minute drive from work for both of them. And, though they’re still renters, they now have significantly more space, and haven’t had to deal with any ticked off neighbours. Instead, Christmas says Oakley was given a warm welcome. “The owners of the house built us a six-foot fence around our whole yard for her to be able to play outside.”