|Écrit par Me Sébastien Fiset , LL.B., B.A.A.|
|Lundi, 17 Mai 2010 12:51|
LAW / CO-OWNERSHIP (COOP / CONDOS) AND ANIMALS (CATS, DOGS, ETC.)
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You live in a co-ownership (condo / sometimes called a coop), and are contemplating the purchase of a domestic animal, maybe a cat or dog; or do you already own a loyal companion and are thinking of moving to a condominium?
Perhaps you live in a co-ownership where your neighbour has a domestic animal who causes disturbance and you are wondering what rights you have?
Maybe you are renting a unit in a co-ownership?
Here is a brief insight of what you should know with regard to animals in co-ownerships (condos / coop).
I. PRINCIPLE AND EXCEPTION
Principle : Animals are allowed
A co-ownership, similar to a rental lease, is governed by an act : the Declaration of Co-ownership.
The declaration is made up of “By-laws of the Immovable”. According to the terms of article 1054 of the Civil Code of Quebec, the By-laws of the Immovable “contain rules on the enjoyment, use and upkeep of private and common portions, and those on the operation and the administration of the co-ownership”. Meanwhile, as opposed to a lease where we sometimes find a clause which prohibits domestic animals such as dogs or cats, such a clause would generally be considered illegal in the By-laws of the Immovable.
On the one hand, according to article 1063 of the Civil Code of Quebec, each co-owner can use and freely enjoy his private portion and the common portions as long as he respects the By-laws of the Immovable and does not interfere with the rights of the other co-owners or the destination of the immovable.
On the other hand, each new restriction should be justified by the destination of the immovable, its characteristics or its location (article 1056 of the Civil Code of Quebec). Therefore, the banning of animals, and even clauses which would limit the size or weight of an animal, are rarely justified by one of these three (3) criteria.
Exception : The original Declaration of Co-ownership and justified restrictions
If your Declaration of Co-ownership stipulates since its publication and according to its destination, its characteristics or its location that it is not permitted to have domestic animals, we are of the opinion that you would have to conform.
However, if the Declaration of Co-ownership does not contain any such restriction since its publication which is justified by its destination, its characteristics or its location, it is generally illegal, according to the terms of the Civil Code of Quebec, to not allow animals.
Meanwhile, jurisprudence with regard to the banning of domestic animals in co-ownerships is neither consistent nor unanimous. There are exceptions.
In one case where the assembly of co-owners of a syndicate had modified its By-laws of the Immovable to ban domestic animals (with the exception of fish, caged birds and cats), the Court nullified the by-law because the ban was not justified by the destination of the immovable.
In another case where domestic animals were allowed, a clause stated that all animals declared a “nuisance” (harmful) should definitely be removed within a certain deadline. Therefore, certain co-owners whose dogs were declared a nuisance asked the court to declare the by-law ineffective. The Court, under article 1056 of the Civil Code of Quebec, judged the by-law to be valid. However, leaning toward the “discretionary power” exercised by the administrators, it declared that the dogs were not nuisance and authorized the co-owners to keep them.
As these legal cases demonstrate, the modification or the application made by the directors of the syndicate of co-ownership of a By-law of the Immovable may be the object of a legal review. One must have serious grounds to declare an animal dangerous and even more to have it banned. The directors of a board of administration (and its directors / administrators) must not abuse their powers.
II. MODIFICATION OF THE DECLARATION OF CO-OWNERSHIP
Is it possible to abolish the right to own domestic animals in a co-ownership if the favourable vote required is obtained?
Yes. To “ justify” this, it would be necessary to obtain the approval of ¾ of the co-owners representing 90% of the votes, in addition to the approval, for matters concerning private portions, of all the co-owners who already own animals, which has proven to be a very arduous challenge.
This would also require modification of the constitutional act according to article 1097 line 4 of the Civil Code of Quebec. Furthermore, modifying the constitutional act requires the drafting of a clause by a lawyer or a notary and the publication of such at the Land Registry office (Registre foncier du Québec).
In addition, if your declaration of co-ownership was published prior to the reform, that is before 1994, and it requires a unanimous vote of all co-owners, it would be necessary to obtain the favourable vote of 100% of the co-owners.
The fact that your declaration of co-ownership does not stipulate anything against animals does not mean that recourses are not available for co-owners who feel prejudiced in their rights of enjoyment. In fact, according to the terms of article 976 of the Civil Code of Quebec:
“Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.”
You should ensure that you maintain good terms with your neighbours. Taking proper care of your animal (odour) and ensuring good behaviour (control of barking and defining his territory) will make your animal a model companion not only in the common portions, but also in your private portion. Avoid using your patios for the dog’s personal needs and do not walk him without a leash in the common portions of the property.
Before purchasing, become informed
It is best to use prudence when purchasing a condo if you already own a domestic animal, or have the intention of acquiring one. Get informed beforehand to see if animals are welcome and if other co-owners already own animals and find out which By-laws are in force.
Has the presence of an animal become dangerous, or a nuisance? Putting an end to the problem doesn’t necessarily mean getting rid of the animal.
In fact, the administrators would be advised to use all means at their disposal in order to find a solution to remedy the loss of enjoyment of the complaining co-owners, without abusing their powers. Show proof of escalation in your actions and seek advice before undertaking any uncertain measures.
Directors – even if you have the responsibility to determine if the animal is dangerous or not and can request that the animal be banned according to the Declaration of Co-ownership, beware! If it can be proved that this decision is of a biased nature, to the detriment of the rights of enjoyment of the co-owner or of the owner of the animal, because of a clause which is vague and imprecise, or if you acted in bad faith with the intention of causing harm, the civil responsibility of the syndicate of your co-ownership could be threatened (articles 5, 7, 1102 and 1103 of the Civil Code of Quebec).
It is therefore very important to be able to discern the circumstances involved in declaring a dog or cat a nuisance, harmful or dangerous and thus affecting the right of enjoyment of the co-owners. One has to be able to justify the imposition of corrective measures without being abusive.
IV. OBLIGATORY DELAY TO OPPOSE CERTAIN DECISIONS OR CERTAIN NEWLY ADOPTED RULES
If the required majorities have been obtained and you wish to oppose this decision for a valid reason (biased decision, intent to injure or in contempt of your rights) you should make a request before the court within sixty (60) days.
Therefore remember this : “ each co-owner owns his fraction ; he uses and enjoys freely his private portion and the common portions, on the condition that he respect the by-laws of the immovable and does not infringe on the rights of other co-owners nor the destination of the immovable.”
The information provided on this page is general in nature and cannot compensate for the need to obtain legal advice specific to a particular situation.
 Exceptions, for example seeing eye dogs, will always exist.
 Wilson vs. Syndicate of co-owners of Le Champlain condominium,  R.D.I. 261 (C.S.), EYB 1996-30626 (C.S.)
 Miller vs. Syndicate of co-owners of « Les résidences Sébastopole centre », EYB 1996-30336 (C.S.); see also Syndicate of co-owners Novell II c. Ambeliotis,  R.D.I. 539 (C.S.) and Syndicate of co-owners Le St-Patrick, secteur 4 c. Fortin, B.E. 2004BE-536, REJB 2004-60788 (C.Q.)
 Destination, characteristics or location (article 1056 of the Civil Code of Québec)
 Article 1098 of the Civil Code of Québec: “ Decisions on the following matters require a majority vote of 3/4 of the co-owners representing 90% of the voting rights of all the co-owners: 1° to change the destination of the immovable (…)”;
Article 1102 of the Civil Code of Québec : “ Any decision of the syndicate which, contrary to the declaration of co-ownership, imposes on a co-owner a change in the relative value of his fraction, a change of destination of his private portion or a change in the use he may make of it is without effect. ”
 Article 1097 Line 4 of the Civil Code of Québec : “ Decisions respecting the following matters require a majority vote of the co-owners representing 3/4 of the voting rights of all the co-owners: (…)
4° the amendment of the constituting act of co-ownership or of the description of the fractions. ”
 Article 1060 of the Civil Code of Québec: “ The declaration and any amendments made to the constituting act of co-ownership or the description of the fractions are deposited in the registry office. The declaration is entered in the land register under the registration numbers of the common portions and the private portions. The amendments are entered under the registration number of the common portions only, unless they directly affect a private portion. However, it is sufficient for amendments made to the by-laws of the immovable to be filed with the syndicate.
Where applicable, the emphyteutic lessee or superficiary shall give notice of the registration to the owner of an immovable under emphyteusis or on which superficies has been established. ”
 Article 53 of the Act Under the Civil Code Reform of the Civil Code of Quebec stipulates the following: “ The building of a condominium established before 1 January 1994 is governed by the new law.
The stipulation of the declaration of condominium which establishes the rule of unanimity for decisions to change the destination of the property continues, however, notwithstanding section 1101 of the new code.
Is also maintained, notwithstanding section 1064 of the new code, the stipulation of the declaration of condominium fixed contribution to the costs resulting from the ownership and operation of the building depending on the size of the private portion of each fraction. ”
 Articles 1097, 1098 and 1102 of the Civil Code of Québec (see also previous footnotes 4 and 5)
Article 1103 of the Civil Code of Québec: “ Any co-owner may apply to the court to annul a decision of the general meeting if the decision is biased, if it was taken with intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes. The action is forfeited unless instituted within 60 days after the meeting. “
The court may, if it deems the action to be trivial or persecutory, hold the plaintiff responsible for damages.
Mise à jour le Samedi, 16 Août 2014 17:32