Teno v. Essex C.C. No. 28, 2022 ONCAT 43
May 2022 was a busy month in the Condominium Authority Tribunal (“CAT”). As our readers will know, the CAT has exclusive jurisdiction to resolve disputes between owners and condominium corporations with respect to the provisions of the declaration, by-laws, and rules relating to pets/animals. In Teno v. Essex Condominium Corporation No. 28, 2022 ONCAT 43, the CAT provides guidance to condominiums and property managers on how a condominium can migrate towards compliance in the face of historical nonenforcement.
In Teno, the condominium’s declaration contained a blanket prohibition on all animals within the condominium. As our readers may remember from our previous article, prohibitions on animals contained in a declaration are not required to be reasonable, and exceptions are rare.
That said, despite this prohibition, it was not enforced over three (3) decades, specifically with respect to the condominium permitting cats. When the condominium began receiving requests for dogs from owners, the condominium reviewed and determined to bring itself into compliance with the prohibition contained in the declaration.
To move towards compliance, in light of the history of non-enforcement, the condominium enacted rules permitting existing cats to be kept, provided the cats were confined to the units, and until the animals passed away. During this time, no new animals would be permitted and once the “legacy cats” passed away, they were not permitted to be replaced. Given decisions from Ontario’s Superior Court of Justice that past massive non-enforcement may bar the condominium’s efforts to enforce the prohibition against existing cat owners in the present, the passage of transition/ “legacy” rules offered the best avenue to achieve future compliance. An owner challenged the “legacy” rule on the basis that such was contrary to the prohibition in the declaration and therefore invalid.
Under the Condominium Act, 1998 (the “Act”), condominiums may pass reasonable rules, however those rules must be consistent with the declaration. Boards must also take all reasonable steps to ensure compliance with a declaration. In its analysis, the CAT found that while there was past nonenforcement, the condominium acknowledged this, and the passage of the “legacy” rules represented the condominium’s efforts to move towards compliance, while balancing the rights of existing pet owners. Provided the condominium was moving to compliance with its declaration’s prohibition on animals, such a transitional rule was reasonable and valid.
Balancing the interests of all owners, including ensuring compliance with a condominium’s governing documents can be a challenging task. Such a task can be made even more difficult where certain provisions of a declaration or rule have gone unenforced in the past or have been applied inconsistently. However, previous nonenforcement may not be a complete bar to future enforcement. Provided a condominium recognizes its obligations to its governing documents, and acknowledges past nonenforcement, future compliance can be achieved by migrating, in a clear, fair, and consistent manner, to enforcing its declaration, by-laws and rules over time.
Written by Christopher Mendes, edited by Robert Mullin. *This article does not constitute legal advice, always consult legal counsel.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.