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Prohibition on animals in rental housing
The standard lease produced by the Tribunal administratif du logement or TAL (formerly known as the Régie du logement or rental board) provides, in its section E entitled “Services and Conditions,” the possibility for a landlord to allow―or not to allow―their tenant to keep one or more animals by means of a box to be checked. Alongside this box, the landlord can indicate more specific information, for example, the types of animals allowed, the number of animals allowed, or the conditions under which they are allowed. A no-pets clause may also be included in the building’s by-laws, which are considered part of the lease and of which the landlord must provide a copy to the tenant before the lease is signed.
For a no-pets clause to be valid, it must be clear. It must be written in the lease or communicated verbally. If the lease does not include such a clause, the landlord cannot prevent tenants from having an animal unless the animal causes damage to the unit or disturbs other tenants. If a clause only prohibits one type of animal, such as dogs, it is reasonable to infer that other types of animals, such as cats or rabbits, are not prohibited.
Validity
In principle, clauses that prohibit animals from being kept in residential housing units are valid. Indeed, such clauses are not considered by courts to be unreasonable or abusive per se, nor have they been found to be contrary to the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms, provided they do not target a particular group of individuals (e.g., senior citizens or people with disabilities). Thus, a landlord is free to include a no-pets clause in a lease or in the building’s by-laws, in which case the tenant will be bound by it, as long as they have freely consented to it when signing the lease.
Possible exceptions
There are several possible exceptions to the validity of no-pets clauses:
— Service animals. Service animals help a person cope with a disability, for example a guide dog for a visually impaired person. A clause prohibiting a service animal will always be found to be contrary to the Charter of Human Rights and Freedoms.
— Animals used for zootherapy purposes. The evidence would have to establish, in a convincing and substantive manner, that the animal is essential to the health and well-being of the tenant, for example by showing that the zootherapy provided by the animal in question is prescribed by a healthcare professional. It is also important to note that the case law is very divided on the validity of this possible exception. The factual details of the case will therefore be critical.
— When a landlord has shown a generalized and consistent tolerance of animals. If, for example, the landlord allows several other tenants in the same building to have animals over a long period of time, then the sudden enforcement of the clause could be considered abusive. However, the evidence must be very convincing.
Tolerance and waiver
If a landlord and tenant sign a residential lease that includes a no-pets clause, but the landlord, for whatever reason, tolerates the presence of the tenant’s animal for a certain period, this does not, in principle, render the clause invalid or unenforceable. A landlord may decide, at any given time, to enforce the clause. The simple fact that the animal has not caused any damage or disturbance during this period of tolerance does not constitute an argument against the enforcement of the clause. If a landlord does in fact wish to waive their right to enforce such a clause, they must do so in a clear and unequivocal manner, ideally in writing.
However, if the landlord has tolerated the presence of animals in a generalized and consistent manner, for example, by allowing several tenants in the same building to have animals, in plain view and over a long period of time, the sudden enforcement of the clause could be considered abusive. This scenario remains an exception and the tenant will have to provide very convincing evidence to prevent the enforcement of the no-pets clause.
Enforcement of the clause
If a landlord wants to enforce a no-pets clause, they must appeal to the Tribunal administratif du logement. In other words, in order to force a tenant to get rid of their animal, the landlord must file an application with the TAL. Thus, the tenant can remain in possession of the animal pending the TAL’s final decision. Under no circumstances may the landlord physically remove the animal from the housing unit; this would be considered theft.
If a landlord decides to institute proceedings before the TAL, they must formally notify the tenant and provide a copy of the application. The TAL will then send both parties a notice informing them of the date and time of the hearing.
A landlord whose tenant’s lease includes a no-pets clause and who is adamant about forcing the animal out of their housing unit has two options. First, the landlord can apply to the TAL to terminate the lease in order to force the tenant to move out. However, the TAL will only grant the application if the landlord can show that the presence of the animal is causing them, or other occupants of the building, serious harm. The second option is to ask the TAL for specific performance of the clause, i.e. to order the tenant to get rid of the animal. In this case, serious harm need not be established.
It should be noted that the TAL generally tends to respect and enforce no-pets clauses. However, each case is unique and will be decided based on the situation’s particular circumstances. In order to successfully challenge a landlord’s action aiming to enforce a no-pets clause, the tenant will have to show that the landlord’s enforcement of the clause is abusive, unreasonable or was undertaken with the intention of causing harm.
For additional information, please refer to the following websites
— Éducaloi
— Tribunal administratif du logement
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