Canada: Conflict Between Condo Declaration And Religious Practices

Last Updated: November 13 2012
Article by Heenan Blaikie's Condominium Legal Team

In the vast majority of instances, it is important for condominium corporations to actively enforce their declarations, by-laws and rules. In fact, section 17(3) of the Condominium Act, 1998 (the "Act"), imposes an obligation on condominium corporations to take all reasonable steps to ensure compliance. However, there are certain instances when condominium corporations should exercise discretion and obtain guidance from legal counsel before seeking to enforce. An example of such a predicament is the placement of a mezuzah on a unit's exterior doorframe. This issue has previously received media coverage in the United States and has recently resurfaced.

Common practice amongst most members of the Jewish faith is to affix a small ritual item on their doorposts known as a mezuzah, which contains biblical verses written on parchment. This ritual is regarded as a religious obligation and canonized as such in the Jewish Bible (the Torah). A potential problem can arise when a condominium corporation has a rule prohibiting items placed or affixed outside of units. On the one hand, section 58 of the Act requires rules to be reasonable. Rationales for this rule can include stylistic consistency and integrity, maintaining property values, insurance requirements or safety concerns.

The mezuzah controversy rose to prominence in Chicago in 2001, when the condominium association at the 378-unit Shoreline Towers adopted a rule banning, "mats, boots, shoes, carts or objects of any sort... outside unit entrance doors." The Board determined that this rule must be enforced in an absolute manner, and accordingly, Shoreline Towers management removed the hallway mezuzot.

Complaints by Shoreline Towers residents were filed with the Chicago Commission on Human Relations, Illinois Attorney General, and U.S. Department of Housing and Urban Development, alleging housing discrimination on the basis of religion. In 2006, a federal court judge determined that the condominium association's rule did not violate the Federal Fair Housing Act, which was upheld on appeal in 2008. However, in 2009, the US Court of Appeals for the 7th Circuit in Chicago reversed the 2008 decision, and the case proceeded. In 2011, after years of legal fees and aggravation for all parties, a confidential settlement was achieved.

As a result of the Shoreline Towers controversy, Chicago's Municipal Code was amended in 2005 to make it illegal to prohibit a renter or owner of an apartment, house or condo from, "placing or affixing a religious sign, symbol or relic on the door, door post or entrance." Furthermore, in 2006 the Illinois Condominium Property Act was amended to provide that the board may not make a rule that prohibits any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front door area of a condominium unit.

Mezuzah legal battles, similar to the Shoreline Towers controversy, played out in other states as well. A Florida condominium association was deemed to have discriminated against a unit owner when it threatened her with a fine if she did not remove her mezuzah from her exterior door. This case was part of the impetus for the state legislature to amend the Florida Condominium Act in 2008, modeling the Illinois amendment. Similarly, a Houston condominium association was embroiled in a legal proceeding with a unit owner who was violating association rules by affixing a mezuzah. Although the US District Court judge ruled in favour of the condominium association, Texas legislation passed in 2011 effectively negated the decision.

Very recently, the media was abuzz with the news that a Connecticut condominium association ordered an owner to immediately remove her unit's mezuzah or face a daily fine of $50. The condominium's lawyer advised the media that the declaration prohibited unit owners from hanging or displaying items outside windows or walls without the prior consent of the association's board. The association allowed crosses and Christmas wreaths to be displayed, but required the unit owner to remove her mezuzah. After the unit owner retained legal counsel and media picked up the story, the matter was resolved with the unit owner being permitted to keep her mezuzah up and the association publicly apologizing. The association president claimed that it was a misunderstanding and the condominium was not aware of the significance of the mezuzah.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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