Provisions that restrict the use and occupancy of the common elements, units, or assets of a condominium corporation can, generally speaking, be contained either in the declaration or in a rule. So, the questions that arise are: When is a rule sufficient? And when is an amendment to the declaration necessary?
Here’s the key difference between such provisions in the declaration and in a rule:
- A rule must be reasonable and must be for the purposes set out in Section 58 of the Condominium Act (namely to promote safety, security, or welfare or to prevent unreasonable interference with the use and enjoyment of the property).
- On the other hand, a provision in the declaration does not have to be reasonable and does not have to be for the purposes set out in Section 58.
So, for example, the Courts have said that for a complete prohibition of all pets (or all dogs) to be enforceable, it must be contained in the declaration (because some pets or dogs don’t pose any unreasonable risks of the sort that fall within the purposes of Section 58). On the other hand, a prohibition of smoking CAN be included in the rules (because the risks associated with smoking and second-hand smoke fall squarely within the purposes of Section 58).
So again: Depending upon the specific issue a rule, rather than a declaration amendment, may often be sufficient.
Some further notes:
- One key consideration is that a rule is more flexible in the sense that a rule is easier to amend or repeal in future. On the other hand, a provision in the declaration is much more entrenched (i.e. much more difficult to amend) than a rule. So, when you have a choice, this may cause you to prefer (or not to prefer) a declaration amendment over a rule.
- BOTH the declaration and the rules are, in any event, subject to human rights legal requirements. So, when it comes to accommodating human rights, it makes no difference whether the particular provision is in the declaration or in a rule. Either way, human rights legal requirements prevail.
- In terms of enforcement: The enforcement procedures are essentially the same (for violations of both the declaration and rules). So, as long as your rule is valid, it is “every bit as enforceable” as a provision in the declaration. HOWEVER, one important difference is as follows: When it comes to collection of costs (incurred because of a violation), if you want to be able to add the costs to the owner’s common expenses (without a Court order), this likely requires a provision allowing for such recovery (typically an “indemnification” provision) in the declaration.
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