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Archived (Originally Posted: May 29, 2018)

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Making Rules that Really Work

To be real and effective, condominium rules should be both clear and decisive.

In a recent edition of her blog, Denise Lash commented on a case out of British Columbia in which a strata corporation’s pet restriction was overturned due to its vagueness.   

In this case, the rule permitted only “small” dogs and cats, with the word “small” being defined in the rule as “an animal that can comfortably be picked up and carried.” 

Although the dog in question was a large Golden Retriever, the owners reasonably demonstrated that they were able to comfortably pick him up, therefore satisfying the definition of “small” that the rule provided.

The case is an obvious reminder that if rules are to be enforceable, they must be clear and specific. More than this, though, it is a reminder that, when making rules, you need to really think about what you are trying to address, and the ways in which the words you are using to express it might be interpreted by others.  

PRO TIP

The way you think something might be interpreted, is probably not the only way it can be interpreted. It is always important, when drafting rules (and other governing documents), not only to be precise, but to think outside of your own little box of experience and understanding.  Clearly, the way things went in this case wasn’t what whoever drafted the rule had anticipated; the fault is likely squarely theirs for not thinking beyond their own limited range of experience and expectations.

There are other principles to consider when crafting rules for your condominium corporation.  We often see rules prepared by condominium directors or managers that are not only vague, but are phrased in ways that contribute to a lack of certainty as to whether anybody really has to do anything at all. 

To avoid this, rules should not use words like “should”.  An effective rule will state something like, “Owners are not permitted to leave garbage bags outside of their units until the evening before pick-up,” rather than “Owners should not leave garbage bags outside of their units until the evening before pick-up,” or “Owners should place garbage at the end of their lawns no earlier than the evening before pick-up”.

“Should” or “should not” are suggestions.  “Should” and “should not” are not enforceable. No one can justifiably be penalized for failing to do what is suggested or doing that which someone merely thinks that maybe they’d be better not to do.  
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While we encourage boards of directors and managers to take responsibility for defining the rules that govern the day-to-day experience of living in their respective condominium corporations, it is always a good idea to have proposed rules, by-laws and other governing documents reviewed by qualified and experienced legal counsel who can help ensure they are effective by helping you think about things you might be missing and identify whether your rules are really rules or just recommendations.

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CK Legal's Condo Guru commentaries are provided for general information only relating to Ontario condominium law.  They are not intended as legal advice.  Anyone wanting or requiring legal advice or assistance relating to any aspect of condominium law should contact competent and qualified legal counsel, including the lawyers at CK LLP.

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