Part 10 published on 01/05/05
“No pets” provision in declaration held unenforceable
In this case, the court held that provisions akin to rules, contained in a condominium declaration, must comply with Section 58 of the Condominium Act (which governs rules). The court said: “If any part of a declaration conflicts with Subsection 58(1), it is void and unenforceable”. The court said that where, pursuant to clause 7(4)(b) of the Condominium Act, a declaration contains conditions or restrictions with respect to the occupation and use of the units or common elements, those provisions cannot go beyond that which is permitted in Subsection 58(1).
The court held that the cats which were the subject-matter of the particular application did not “run afoul of clauses (a) or (b) of Subsection 58(1)”. The court said that, “it cannot be said that the presence of all pets inherently constitutes a breach of those clauses”. Therefore, the court held that the “no pets” provision in the declaration could not be applied to require removal of the cats.
[Editorial Note: In the editor’s view, this case is wrongly decided. There have been many previous decisions which have confirmed the distinction between “no pet” rules and “no pet” provisions in a condominium declaration. In the editor’s view, provisions in a condominium declaration are not subject to Section 58 of the Condominium Act. In the editor’s view, “no pet” provisions in a declaration are enforceable, subject only to compliance with human rights. There have been many previous decisions which have confirmed these principles.]