How to Reinstate a Lost Restriction
In the case of MTCC 736 v. Verstova, the CAT ordered an owner to permanently remove the owner’s cat. This was based upon a “no-pets” provision in the corporation’s Declaration and Rules.
But the history of the particular no-pets provision is what caught our eye.
The decision includes the following paragraphs setting out the history of the particular no-pets provision:
MTCC 736’s declaration states that no animals, including those usually considered pets, are allowed in the residential units or on the common elements of the corporation. Notwithstanding these “no pet” provisions, at an unknown date, MTCC 736 passed a rule which permitted pets. However, on October 2, 2013, in accordance with the provisions of s. 58 of the Condominium Act, 1998 (the “Act”), MTCC 736 notified owners of its intent to modify the rules to be consistent with the declaration.
The amended rules, effective November 7, 2013, stated that only existing pets registered by owners within 30 days of the rules’ effective date could be kept on the premises. It further stated that these registered pets could not be replaced.
- Pets were originally prohibited by a provision in the Declaration.
- However, the condominium corporation subsequently passed a Rule which purported to allow pets. That Rule was clearly not consistent with the Declaration and was therefore likely void (per Section 58(2) of the Condominium Act). However, by passing that Rule (and then allowing pets into the condominium), the condominium corporation likely rendered the no-pets provision in the Declaration unenforceable. In order to maintain a restriction, a condominium corporation generally needs to consistently uphold and enforce that restriction and the condominium corporation clearly had not done that in this case.
- This left the condominium corporation with an invalid Rule (permitting pets) but also an unenforceable no-pets provision in the Declaration! Note as well that the condominium corporation had a legal duty to take reasonable steps to enforce the provision in the Declaration (per Section 17(3) of the Condominium Act).
- In order to solve the dilemma, the condominium corporation replaced the Rule with a new no-pets Rule (consistent with the Declaration). However, the new no-pets Rule also wisely contained a legacy provision, to permit pets that had arrived during the condominium’s “pets permitted period”.
In our view, this was precisely the correct procedure. A restriction may be “temporarily lost” because of contrary or inconsistent actions on the part of the condominium corporation. But it is usually possible to resurrect the restriction by taking steps to cure the inconsistency (by taking deliberate action, such as a new Rule or perhaps a Notice) with an appropriate legacy provision (grandfathering) for “permitted violations”. The recommended deliberate action will depend upon all of the circumstances in each case. In some cases, a notice in the status certificates (about the intention to again enforce the restriction) may also be wise.
Returning to the Verstova case: The cat in question was not one of the “permitted violations” protected by the legacy provision and therefore had to be removed.
Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!