Legal

November 12, 2020 Published by Toronto and Area Chapter - By HARJOT SINGH ATWAL

Establishing Boundaries and "Good Fences" in Condominiums

From the Fall 2020 issue of the CCI Toronto Condovoice Magazine.

The enforceability of No-Pets, Adults-Only, AirBnB and Window Restrictions

In Robert Frost's famous "Mending Wall" poem, the narrator questions the purpose of a boundary-defining wall, to which the property owner next door replies: "Good fences make good neighbours". When considering questions of condominium lifestyle, this oft-quoted proverb helps explain why a condominium's declaration always has more of a purpose than just establishing the physical boundaries between different units and the common elements. Such a constating document, also establishes interpersonal and societal boundaries between condominium neighbours living together and interacting in a community.

Over the years, courts have ruled on the enforceability of various types of community- defining declaration provisions, including blanket bans on pets, adults-only requirements, and restrictions on Airbnb short-term rentals. In such examples, one of the first places to look when determining the likelihood of a provision's enforceability by a condominium corporation (the "Corporation") is s.7(4)(b) of the Condominium Act (the "Act"). It specifies that a declaration can contain "conditions or restrictions with respect to the occupation and use of the units or common elements". For example, with respect to Airbnb commercial rentals, the declaration may limit use of units to residential "single-family dwellings", in which case courts have upheld restrictions prohibiting short-term tenancies less than four months.

The Act permits condominium by-laws to affect the lifestyles of a resident's visitors, since they can restrict the use and enjoyment of the condominium's common elements and other property assets by non-occupants. Although the permissible functions of by-laws are more circumscribed in the Act than a declaration's objectives, the possible purpose of a condominium's rule is the most limited of all. A rule can only have one of two purposes: (a) promoting the safety, security, or welfare of owners, property, and assets; or (b) preventing unreasonable interference with the use and enjoyment of units, common elements, or assets.

Ultimately, these two overarching purposes codified in s.58(1) of the Act are the true starting point of the analysis. They essentially give answers to the question posed of the neighbour by the narrator in "Mending Wall". To paraphrase Robert Frost: "But why do good fences make good neighbours?" From a condominium perspective, it comes down to one property owner's right to safely and enjoyably use their unit and the common elements in any compliant manner they deem fit, as long as they simultaneously respect other unit owners' rights to do the same.

In the 1995 decision of York Condominium Corp. No. 35 v. Mosseau, the declaration for a townhouse development required the Corporation's consent to any alterations to the windows not in conformity with the registered drawings. The windows had not been installed properly during construction. Three years later, the Corporation attempted to force all unit owners to accept placing stick-on strips or mullions in their windows in order to create a uniform and aesthetically pleasing look for the entire development.

However, three unit owners found the mullion window dividers to be visually offensive, as they were described as "the cheapest and simplest" solution in the court's decision. The stick-on strips also further obstructed the unit owners' views from their back windows, already hampered by the development's presumably tall backyard fencing. In finding for the owners, the judge first stated the Corporation's position while citing two past cases as authority for an overall, organizing condominium principle:

"There is some reliance on general principles of condominium living…that inherent in the condominium concept is the principle that because condominium unit holders live in close proximity and share facilities in common, in order to promote the welfare of the majority of the owners, individual unit owners may be required to give up a certain degree of freedom of choice that they might otherwise enjoy in separately, privately-owned property".

But despite what the judge describes as the Corporation's good-faith attempt to resolve the window problem, he held that the Corporation "sle(pt) on its rights" by not requiring alterations to obviously-modified and non-complying windows for at least three years which "lulled (unit owners) into a sense of security". Under the circumstances, issuing a court order requiring window replacement would amount to an abuse of authority, especially given the Corporation's acquiescence and its failure to demonstrate "the required changes to the windows were for the general welfare of the majority of the unit owners".

Compared to more clearly impactful declaration restrictions such as adults-only requirements discriminatorily not allowing a unit owner's children under the age of 18 to permanently reside in a building, or pet prohibitions negatively affecting unit owners requiring support animals, the window uniformity issues certainly seem trivial and inconsequential. After all, the window restrictions did not create Human Rights Code issues. Yet, the Mosseau decision describes the "standoff " that nevertheless occurred over the windows, and stated that the parties should be commended for coming to court rather than "resolving it physically in the backyards".

Not unlike the poem's thematic implications expressed by neighbours coming together to mend a mutual fence, the court's reasoning here shows the importance of peacefully coming together to re-establish acceptable boundaries as needed in condominium communities. Indeed, the Act allows the board of directors to make, amend, or repeal any of the Corporation's rules, so as long as they comply with the two overarching purposes promoting welfare and preventing unreasonable interference. Furthermore, the judge's repeated references to the "welfare of the majority of unit owners" seem clearly influenced by utilitarian philosophy and the "greatest good for the greatest number" concept.

Particularly for registered condominium managers ("RCM"), Mosseau also shows the importance of regularly enforcing conditions and restrictions contained in the Corporation's rules, by-laws, and declaration. Otherwise, management risks losing the ability to require owner compliance with them at a later point in time. With respect to pets, this means that if an RCM notices non-compliance – whether it is with respect to pets over a 35-pound limit, an owner having too many pets, or pets causing unreasonable noise and nuisance – then the RCM will need to enforce the condominium's requirements if management actually wants to keep the privilege of being able to invoke them in future. In addition to time being a factor, it should be noted that the enforceability of condominium restrictions is based on the following descending hierarchical order based on their origin: the Act, the declaration, the by-laws, and the rules. Restrictions in the Act will almost always be enforced, whereas unreasonable rules will not (or at least are much less likely to) be enforced. Generally, approval voting percentages determine the order of this sliding scale of enforceability.

For example, amending a declaration requires 80% to 90% of the owners to agree, whereas passing a by-law (in most circumstances) only needs 50% plus one of all unit owners to approve it. Rules may be made by resolution of the board of directors. A rule becomes effective 30 days after notice of the rule has been given to the owners and no requisition for a meeting has been received.

Arbitrariness and disproportionality in the enforcement of restrictions will also be considered. Cases like Niagara North Condominium Corp. No. 125 v. Waddington demonstrate that blanket bans on pets may not be enforceable. This is particularly the case if the pets are emotional support animals necessary to the health and well-being of an individual with disabilities, as in Waddinton. However, evidence of the disability will likely be required. In Waddington, Ms. Waddington had a brain injury and her psychologist indicated she would "suffer an unreasonable and unnecessary hardship" if required to give up her cats. As a result, the court permitted her to keep them. However, in Niagara North Condominium Corp. No. 125 v. Kinslow, on similar facts, an individual also claiming a brain injury and disability did not lead requisite evidence of her medical dependency on her cats and was forced to remove them in 90 days.

With respect to age restrictions, absolute prohibitions on children under the age of 18 permanently residing in a condominium will certainly be held as void, as decided in Dudnik v. York Condominium Corp. No. 216. In fact, a three-member Board of Inquiry was appointed by the Ontario Human Rights Commission in 1988 to make findings in five complaints alleging discrimination on the basis of family status and ageism by certain Corporations. As a result of the Board's decision, which was upheld by the Ontario Court of Justice in 1991, adults-only condominiums have now been illegal in Ontario for quite some time.

In Summary
At the end of the day, it appears adults-only restrictions are never enforceable, pet prohibitions are sometimes enforceable, and Airbnb or short-term rental bans will usually be enforceable. Of course, as the windows in Mosseau show, such decisions will be context-specific and can be driven by utilitarian arguments, the passage of time, arbitrariness, and disproportionateness. Human Rights Code considerations and other factors also affect reasonableness standards here. Absolute prohibitions and blanket bans will seemingly be the hardest to justify, but substantive evidence will need to be led by unit owners seeking exceptions or desiring to overturn them.

To conclude by returning one last time to Robert Frost's poem, even though "Good fences make good neighbours", the narrator does nonetheless repeat the following phrase twice and actually starts off the poem by saying: "Something there is that doesn't love a wall".