Tenants Having Pets in "No-Pet" Condominium

Condominiums currently comprise a substantial segment of the Ontario rental market particularly in large urban centres. This can often lead to legal issues arising from conflicts between the Condominium Act and the Residential Tenancies Act. Nowhere is this more apparent than in the case of rules relating to pets.

Tenants in Ontario cannot be evicted for having pets in their units as long as the pets do not disturb other residents, cause damage to the property, or are inherently dangerous. This has been the case ever since the late 1970’s after an elderly woman was evicted for having a pet cat. The “Fluffy case” (named after the cat) caused a public outcry and led to the legislative amendments that are still in force today prohibiting evictions on the basis of tenants having pets. The restriction is found in section 76 of the current Residential Tenancies Act.

This conflicts with the Condominium Act which permits condominium buildings to place restrictions on residents having pets. While a blanket restriction on residents having pets in Condominiums will generally not be enforceable, a condominium is still entitled to enact rules restricting the size and breed or type of pets which are permitted.

Pursuant to section 3 (4) of the RTA, in the case of conflicting legislation, the Residential Tenancies Act takes precedence over all other Ontario legislation with the exception of the Human Rights Code. This leaves landlords of condominium units in a difficult situation where their tenants bring pets into the property as they are not able to evict the tenant while at the same time running the risk of the condominium taking legal action to enforce its rules which can result in significant cost to the unit owner. Under Ontario law Condominiums are entitled to chargeback the full amount of any legal fees incurred to enforce their rules to the owner of the condominium unit.

In a recent case one of our clients was faced with exactly this situation. After considerable research we determined that there was a strong argument to remove the pet notwithstanding all of the above factors. The main points of the argument are summarized as follows:

• The landlord only has a right to occupy the condominium unit subject to the rules of the condominium Corporation. it cannot lease an interest that is any different or greater than the interest it itself holds.

• It would be an absurd result to allow tenants who are occupying condominium units to keep pets in the units where the owners of the condominium themselves are prohibited from doing so.

• The restriction on evicting a tenant in section 76 applies only to proceedings before the landlord and tenant board. The owner or condominium Corporation still has a right to bring an application to the court under the Condominium Act to enforce compliance with its rules. If the owner or condominium Corporation has the legal right to remove the pet it should not matter in which forum the application is brought to enforce that right.

• Even if the restriction in section 76 prohibits the board from evicting the tenant for having a pet it does not go so far as to prohibit the Board from ordering the pet to be removed.

For a more thorough argument on the issue please watch the full video below.

The above commentary is for discussion purposes only and is not intended as legal advice. If you require legal advice on this or any other topic relating to residential tenancies in Ontario or disputes concerning real estate transactions please contact my office at 416-628-4835 or email me via the website.