By David Lu
As I was driving through my parent’s neighbourhood over the holidays, I saw the same impressive Christmas decorations on the same houses, as if nothing had changed since I was a kid. It reminded me of an issue that sometimes arises in condominium living: decorating, particularly if the decorations are for religious reasons.
Unlike residents in freehold homes, a condominium resident is generally not allowed to put up decorations on their unit’s exterior since it is often part of the condominium’s common elements. In many condominiums, this includes porches or balconies even though they are only accessible from a specific unit. Sometimes, these rules can conflict with a person’s religious beliefs.
The Supreme Court of Canada (SCC) dealt with one such situation in the case of Syndicat Northcrest v Amselem (henceforth Amselem). In Amselem, a group of Orthodox Jews owned units in a luxury Montreal condominium. They wanted to construct succahs (small enclosed temporary huts or booths) on their balconies during the Succot festival. However, the governing documents of the Syndicat (the Quebec version of a condominium corporation) prohibited decorations, alterations and construction on the balconies of its units. Syndicat Northcrest proposed instead that a communal succah be built in the gardens. However, the residents’ position was that a communal succah would not meet their religious requirements and beliefs, which they said called for their own succahs on their own balconies.
In a 5-4 decision, the SCC ruled in favour of the residents. The Court was satisfied that the residents were genuine in their religious beliefs requiring them to have their own succahs. Although the residents were required to sign a declaration indicating their agreement with the condominium’s rules when they purchased their units, the Court found that (1) the Syndicat’s governing documents did not clearly prohibit succahs; (2) the residents had no choice but to sign the declaration in order to live at the condominium; and (3) there was no clear indication to the appellants that their religious rights would be impeded. The SCC ordered that the succahs be permitted, but constructed in a manner that ensured resident safety (i.e. fire escape routes) and conformed as much as possible with the general aesthetics of the property.
Condominium living often means living in a community of residents with various backgrounds and cultures. This can sometimes result in a conflict between a resident’s religious beliefs and a condominium’s rules and regulations. In such situations, both parties should try to dialogue and work together to achieve a solution. As the majority at the SCC wrote in Amselem, “mutual tolerance is one of the cornerstones of all democratic societies.” In condominium living, reasonableness and a willingness to compromise can go a long way in ensuring a harmonious community for all residents.
David Lu is an Associate at Davidson Houle Allen LLP, a boutique Condominium Law firm serving Eastern Ontario.