When drafting or amending pet restrictions in community associations, it’s important to be familiar with local laws. It’s also essential to review your community’s declaration to ensure pet restrictions and rules can’t potentially be challenged by an owner as unreasonable.
A complete prohibition on pets in the declaration is valid and enforceable, says Denise Lash, an attorney, founder of Lash Condo Law in Toronto, and a past president of the CAI Canada Chapter. Declarations also may have restrictions such as limiting the number of pets in a unit.
Any pet restriction in a declaration is presumed valid, Lash notes, adding that prohibiting pets in the rules is not. However, rules can contain pet restrictions that “are reasonable and created for the safety, security, and welfare” of owners and the property or if they prevent “unreasonable interference with the use and enjoyment” of common elements and other units.
Reasonable restrictions might limit the number of pets, impose weight or size limits, define what constitutes a nuisance, as well as spell out what kind of dog might be considered a potential danger. Other rules might require all pets to be leashed or carried in common areas and prohibit pets from being left unattended on patios or balconies.
In Ontario, Lash says most rules and many declarations state any pet deemed by the board to be a nuisance or danger must be removed within two weeks. Nuisances might include excessive barking and not cleaning up after the pet or allowing it to urinate or defecate on balconies; or letting the animal roam unleashed in common areas. Rules surrounding dangerous pets might address dogs with a history of biting, are overly aggressive, or any pet prohibited by government legislation. For example, pit bulls are banned in Ontario, she says.
Community associations can be found liable if they don’t take action to have a dangerous animal removed and the animal injures a person or damages property. But targeting specific breeds can be problematic. Several states bar municipalities and counties from targeting breeds. Several organizations, including the American Veterinary Medical Association, the American Bar Association, and the Centers for Disease Control and Prevention oppose breed-specific policies and argue it’s better to look at the animal’s behavior and history.
Lash agrees: “In my experience, it is not the breed that causes the problem, it is the pet owner and their treatment of their pet.”
Here’s the bottom line: Boards have a statutory duty to reasonably enforce pet rules. Enforcement should be prompt and consistent. But don’t expect a walk in the park. Pet rules should be reviewed periodically by legal counsel, who may have recommendations based on recent case law and pet run-ins. If your rules don’t have teeth to carry out enforcement, it may be time to give them a fresh look.
Second in a three-part series. Revisit Ungated’s guidance on fair and reasonable pet rules.
Pamela Babcock, a writer and editor in the New York City area, contributed to this article