Harjot Singh Atwal Lawyer Pallett Valo LLP
Condominium Communities
Establishing Boundaries and “Good Fences” in Condominiums 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. 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 interfer-
ence 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 CONDOVOICE FALL 2020
CV
41
ILLUSTRATION BY JASON SCHNEIDER
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
