Your Legal Rights When Living in a Condominium With Your Companion Animal
In British Columbia, the Strata Property Act (the “SPA”) is the law that governs the relations between stratas and their owners and tenants. That said, the SPA says very little about what a strata may or may not do in relation to pets. All it says is that a bylaw that prohibits a pet does not apply to a pet living with the owner and/or tenant at the time the bylaw was passed. In other words, if you live with a pet in a condominium at the time a pet prohibition/restriction is passed, you and your pet will be “grandfathered” in, and you will not need to worry about losing your pet.
However, it is quite common for strata owners and/or tenants to run into problems with their stratas. Some people receive oral or written demands to remove their pets by a certain date, failing which legal action will ensue. Or a person feels singled out because others are allowed to have a pet in their building, but for some reason, the strata is picking on them and their pet. Another common problem is when a strata owner or tenant, after living in their home for a while, discovers that the strata bylaws prohibit “pit bull” type dogs…and their dog is a “pit bull”.
The first step a person should take when faced with a strata problem about their pet is to review their strata bylaws. Determine what exactly the bylaws say in regard to the keeping of pets in condominiums and on common property. It is amazing to see how many stratas have bylaws that may be unenforceable for being overly broad , vague or arbitrary in relation to pets.
For instance, consider a bylaw that states “No animals, birds or pets of any kind shall be kept or sheltered on the premises and birds shall not be fed from the premises.” This bylaw essentially prohibits all animals in the condominium complex.
Some jurisdictions in Canada, such as Ontario, do not allow total pet prohibitions. In British Columbia, however, it seems that the SPA allows for total prohibitions. That said, this is certainly up for debate. In interpreting the SPA, some courts in British Columbia have said that overly broad prohibitions, such as the example above, are not enforceable as it would preclude people from owning a simple goldfish – and the SPA was not intended to have such broad implications.
Perhaps more importantly, for the past ten to twenty years, the way in which courts have considered the legal status of animals has changed through out Canada. Animals are still considered “chattel” (property), but courts now recognize that companion animals occupy a much more special place in society than simply being considered like a piece of furniture.
In the context of condominium living, courts have recognized that the law and societal attitudes have evolved to give rise to new concepts as to what are reasonable rules for community living and to a greater appreciation as to how pets can appropriately fit into a closely knit community.
In fairness, some believe that people should be entitled to buy into what they expect to be a pet free environment, and that if purchasers know the rules when they choose to buy a condominium unit, it is reasonable to expect them to obey those rules. It follows that a total prohibition is, therefore, reasonable. However, courts have recognized that life, particularly in today’s society, is not always that simple. There may be changes in circumstances of unit owners in which it might be reasonable for them to keep a pet. For instance, a person becomes older, he or she may lose a spouse, and for the first time in his or her life, begins to live alone. Should that person be forced to give up his or her condominium home if he or she tries to avoid depression or loneliness by acquiring a four-legged companion? Or a unit owner may have an accident or illness and becomes housebound or wheelchair bound and, at that time, begins to feel a need for comfort that can be provided by a companion animal. Should this person be penalized for now having a companion animal?
Others who support a complete prohibition of pets rely on the allergies argument. While this argument has some merit, it can be met by reasonable restrictions rather than by an outright prohibition. This is particularly true where the animal can be confined to the owner’s premises (ie: cat) and where the ventilation system is a modern one that precludes the spread of antigens from one unit to another – all of which has been recognized by courts too.
The other important factor to consider is whether the “accused” pet is in any way interfering with the use or enjoyment of others in the condominium complex. After reviewing the strata pet bylaws, the next step a person should take is to talk to neighbors. The person should see who are his or her “friends” and who are the complainers, if any. Try to see if there are any specific complaints. The more positive support one has, the better.
Courts recognize that strata corporations have the power to regulate, administer, control and manage the use of individual strata lots and of common property. Courts also recognize that the aim of strata living is the mutual enjoyment of property. If the pet does not cause any nuisance, regardless of what the strata bylaw says (or does not say), a court may find that the pet should stay.
If a strata is picking on someone only because the dog is a “pit bull” type dog, and there is no evidence of a genuine nuisance, a court may find the strata’s actions to be arbitrary or oppressive, and order the pet to stay.
Another issue a person should consider when faced with a strata problem about their pet is whether the strata Board followed its own bylaws when deciding what action to take against the pet owner. Review the bylaws to see what type of procedures the strata Board must follow. For instance, were minutes of the meeting taken? Was there the appropriate quorum when making the decision in relation to the “accused” pet? Was the vote recorded? Courts can strike down a strata’s decision based on procedural grounds, such as a strata Board not abiding by its own Bylaws.
Some pet owners wonder if they should meet with the strata Board to give their side of the story. This is a tricky one. On the one hand, one wants to be reasonable and have their voice heard. On the other hand, one does not want to say something that can potentially hurt their case. It is best to wait to be invited to speak to the Strata Board – either in writing or attendance at a meeting. According to the SPA, a strata Board must give the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, before imposing a fine or requiring a person to remedy a contravention (ie: removal of a companion animal). In other words, if the strata Board simply goes ahead and issues a fine and/or demand the removal of a pet before giving the pet owner a chance to express their view, a court may set aside the strata Board’s decision.
The bottom line in all cases is that a strata owner and/or tenant should familiarize themselves with the strata bylaws before they move into the condominium. If there is a total pet prohibition or a breed specific restriction, consider whether moving into such a community would be the right fit for you and your beloved furry companion.