One of the most common areas of confusion in real estate rentals has to do with pets, more specifically dogs. Whether it is a landlord wondering if they can say no to renting a unit to someone with a dog, or a tenant worried that their beloved furry family member will make getting a good rental impossible, there is a lot of confusion on this topic.
The rules themselves are relatively clear, but it’s the exceptions that muddy the water.
Let’s review how it works in Ontario, what sort of situations are the exceptions and as a bonus, ways to help both landlord and tenant move forward in a way that’s mutually acceptable.
Saying “No pets preferred” in the listing? That’s fine.
First, let’s clear the air around what is allowed when you’re advertising a place for rent.
Landlords can absolutely and legally say no pets preferred when they are advertising a rental unit. They can also decide to not rent to a tenant with a pet as that is a preference.
It isn’t considered discrimination because pet ownership, as a whole, isn’t covered under the Human Rights Code. There are different provisions that apply to service animals, which in turn are different than those that apply to emotional support animals. We’ll talk about that below, but the most crucial thing to understand is that landlords can have a preference around pets and can decide to move forward with a tenancy agreement or not based on that preference.
That being said, what’s allowed in the actual paperwork for a tenant? Here’s where it gets confusing.
Saying “No pets permitted” in the tenancy agreement? Not allowed.
While a landlord can have a preference around not having pets and can decide against a tenant application based on the tenant having pets, it is actually not permitted to declare or enforce such a rule.
Section 14 of The Residential Tenancies Act (“RTA”) explicitly states “A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void.”
This confusing combination (a landlord can prefer a tenant with no pets and decide against renting to someone who applies with pets, but can’t write no pets into the tenancy agreement) results in lots of mistaken beliefs on both sides.
The natural question that follows this explanation is what happens if a tenant either lies about having a pet before they move in or gets a pet after they have moved in? In either case, the landlord made a decision based on a preference for no pets and the tenant who is now in the unit has a pet.
Given that a legal tenancy agreement cannot have a “No pets permitted” rule within it, does that mean that a landlord can’t do anything about a tenant who moves in and gets a pet? There are some specific situations where that isn’t true, so let’s review them.
What are the four reasons a tenant with a pet can be evicted?
Despite the fact that a landlord can refuse to rent to a tenant who has a pet, they can’t just evict a tenant who acquires a pet once they move in.
The clearest exception to this is if the rental unit is in a condominium that has a building declaration that says no pets. In such a circumstance, if the pet in question is not a service animal or emotional support animal, then the condo corporation can absolutely require the landlord to evict the tenant and the pet.
For tenants in a condo building without a building declaration that says no pets, or tenants who are in a basement apartment, a non-condo building or a rental house of some sort, the landlord cannot evict because of the new pet simply because the tenant now has a pet.
There are, however, a few other exceptions. Three to be exact.
Under the Residential Tenancies Act (Part V, Security of Tenure and Termination of Tenancies) landlords can in fact put forth an application to evict based on animals. The landlord can do so by proving one (or more) of three allegations:
- The landlord is required to prove that the behaviour of the animal “has substantially interfered with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or other tenants”;
- The landlord is required to prove that the “presence of an animal of that species has caused the landlord or another tenant to suffer a serious allergic reaction”;
- The landlord is required to prove that the “presence of an animal of that species or breed is inherently dangerous to the safety of the landlord or the other tenants”.
Number 1 covers the nuisance element, where you have a dog that is barking or leaving messes in the building or on the property. Number 2 covers where other people in the building have animal allergies. Number 3 is rarely used as it is quite difficult to prove that the pet is inherently dangerous.
While the process for evicting based on any of these three reasons can be challenging, it is possible and landlords who have shared ventilation in a home, where one or more fellow residence has pet allergies has a legitimate case for saying you can’t have that pet in the home.
What about service animals?
When it comes to service animals, the situation becomes much more complex.
Several pieces of legislation in Ontario specifically address rights and restrictions for persons who use service animals. These include Ontario’s Human Rights Code (the “Code”), the Accessibility Standards for Customer Service Regulations under the Accessibility for Ontarians with Disabilities Act (the “AODA”), the Blind Persons’ Rights Act (the “BPRA”), and the Health Promotion and Protection Act (“HPPA”).
Where housing rights and rules intersect with these pieces of legislation it means that a blanket provision against pets may be discriminatory. When a prospective tenant has a service animal, a landlord should not act in the same way as when it is a non-service animal where the landlord’s preference against pets is allowed.
In a broad sense, any landlord (or condo corporation if within a building or complex with a declaration) is required to conduct an individualized assessment to understand the disability-related needs and to determine the extent to which accommodation is required.
The tenant need not disclose their diagnosis, but it is important that the person provide further information as necessary for the landlord to understand their needs to support their request for accommodation.
In short, if a prospective tenant says they have a pet but it is a service animal, it doesn’t automatically mean the landlord has to disregard the pet in their decision, but it does mean that they also can’t just say no pets regardless of whether it is a service animal.
But it’s an emotional support animal!
Service animals, such as a guide dog for someone with a vision impairment, tend to be better understood that pets that are emotional support animals. While similar provisions apply for emotional support animals, it is arguably harder for owners of such animals to make a case for an exception to rules around pets in housing.
Back in March, 2022, a case went through the courts related to an owner of a condo unit who brought a dog into their unit, despite a blanket prohibition of animals within units in the building being written into the condo declaration. The owner requested an exemption based on the pet being an emotional support dog, and supported that request with letters from medical professionals. In essence, the unit owner was requesting an exception based on the Human Rights Code.
In Ontario, the Code has primacy over the Condominium Act, 1998, meaning that despite prohibitions in a condominium’s governing documents, should an individual’s disability or medical condition require an animal, condominiums may be required to permit such as an accommodation. The condo corporation requested further proof and the unit owner refused to provide it, so the case went to the Condominium Authority Tribunal (the CAT).
The CAT agreed with the Condominium in this case and found that the unit owner bore the onus to establish a disability and therefore an exemption to the Declaration’s prohibition on animals. The owner’s medical letters provided did not establish a disability and the corresponding need for an emotional support animal. Therefore, accommodation was not required and the owner was ordered to remove the dog.
*Our thanks to Christopher Mendes and colleagues at SV Law for their write up on this case, which can be found here. We’d always urge landlords or tenants who encounter such situations to work with lawyers who understand the law so they can resolve the situation.
Any ways to actually come to a win-win arrangement?
In our experience, most landlords who would prefer a tenant with no pets have that preference for three reasons.
- They’re concerned about damage to the rental unit being done by the pet. Whether it is scratching the floors or walls or the animal going the bathroom in the unit, landlords often say they prefer no pets because they want their unit to remain in good shape.
- They’ve got other residents in their building (or themselves in some cases) with pet allergies and the unit shared ventilation systems with other units. A fellow resident who is experiencing allergic reactions due to the new pet in another unit can cause a difficult situation.
- They’re worried about noise issues, with a dog that barks or howls and causes issues between the other resident’s enjoyment of their unit. Many landlords want to avoid friction between tenants so that they don’t have to try to resolve such situations.
By understanding the concerns of landlords with pets in the unit, we can consider ways to alleviate those concerns in part or full.
In the first case, where a landlord may be concerned about the pet damaging the unit, it is permitted for a tenant to offer a refundable damage deposit. In Ontario there are restrictions against charging any sort of damage deposit, including for pets. This means that a good landlord who wants to follow the law but is concerned about the pet damaging the rental unit can’t ask for a damage deposit. Despite this, it is legal for a tenant to volunteer a damage deposit. In another of the strange quirks of the rules, it is perfectly legal for a landlord to accept an offered damage deposit. It’s just illegal for the landlord to ask for it themselves. A tenant who can provide a damage deposit and proof in the form of a reference from a current or past landlord that the pet did not cause damage can alleviate this concern in the mind of the new landlord.
In the second case, where a landlord is worried about allergens being spread to another unit, there are some steps to take that may be helpful in certain situations. With shared ventilation, a high-end furnace filter designed to filter pet dander may prevent other residents of the building from experiencing discomfort. Certain animals are also hypo-allergenic and may not trigger the allergy in the other residents. While allergy concerns can sometimes not be fully mitigated, a conversation about the specific concern and possible ways to avoid it becoming an issue can be helpful.
The third case, where the landlord is worried about noise issues due to the pet, can also be mitigated in different ways. Not all animals make noise and proof of neighbours who have not had issue with the pet can be helpful in making the landlord feel comfortable with the tenant and their pet. There are also a number of different types of noise abatement products that stop an animal from barking or howling. In many cases, the noise issues arise when an animal is left alone for a length of time and the tenant could also offer to make arrangements to prevent that from happening.
In all cases, a conversation between the landlord and tenant about the situation, where both parties are looking for ways to make the other side comfortable, can be an effective way to find a win-win result.