I've given up thinking that there are some things in life that are so obvious that everyone inherently understands and knows the right and the wrong way to think about the thing. As it turns out, dog poop is one of those things that not everyone agrees about. There are some pet owners who for some reason or no reason at all think that they don't have to pick up after their pet. These pet owners are quite content to let their dog do its business wherever and whenever the mood strikes and simply abandon the pile wherever it lies. Fortunately, from the perspective of many, the law does not support these pet owners.
I think that people know that in most cities and towns that the municipal government has passed by-laws requiring pet owners to stoop and scoop. What is interesting is that the stoop and scoop bylaws are a little broader and slightly more complicated than simply requiring a dog owner to pick up a dog's waste. For example, let's take a look at the City of Ottawa by-law provisions respecting stooping and scooping. Starting at section 37 of the Animal Care and Control By-Law No. 2003-77
I think that people know that in most cities and towns that the municipal government has passed by-laws requiring pet owners to stoop and scoop. What is interesting is that the stoop and scoop bylaws are a little broader and slightly more complicated than simply requiring a dog owner to pick up a dog's waste. For example, let's take a look at the City of Ottawa by-law provisions respecting stooping and scooping. Starting at section 37 of the Animal Care and Control By-Law No. 2003-77
| STOOP AND SCOOP | ||||
| 37 | Every owner of a dog shall immediately remove any feces left by the dog in the City: | |||
| (a) | on a highway or roadway, | |||
| (b) | in a public park, | |||
| (c) | on any public property other than a public park, or | |||
| (d) | on any private property other than the property of, | |||
| (i) | the owner of the dog, or | |||
| (ii) | the person having care, custody or control of the dog. | |||
| 38 | Every owner of a dog shall dispose of any feces removed pursuant to Section 37 on his or her premises. | |||
| 39 | Every owner of a dog shall remove from his or her premises, in a timely manner, feces left by such dog, so as not to disturb the enjoyment, comfort, convenience of any person in the vicinity of the premises. | |||
You can see that the by-law provides more direction than simply stoop and scoop. A dog owner is required not only to stoop and scoop on a highway, roadway, public park, public property, but ALSO on the private property of any person other than the owner of the dog.
Also interesting is that the by-law requires dog owners to dispose of dog waste that is stooped and scooped on their own premises. This means not putting the waste in a regular garbage can but instead taking the poop home and disposing of it. Furthermore, the owners of dogs even on their own property are required to remove dog fees so as to ensure that the enjoyment, comfort, convenience of any person in the vicinity of the premises is not disturbed. On this point, the By-law has other sections dealing with keeping animals in sanitary conditions.
TENANT'S AND DOG WASTE
The question I get from time to time is what can be done about tenants who do not pick up after their dog. A recent inquiry was about a tenant who thought picking up after his dog "every time" was overkill. The fact is that the by-law leaves no room for not picking up dog waste (disabilities and service dogs excepted). Tenants must pick up their dog's poop or risk being in violation of the By-Law.
Aside from a By-Law violation, a Landlord may also find authority in the Residential Tenancies Act to force a tenant to pick up their dog's poop. A Landlord may serve a Form N5 Notice of Termination. The details section on that form should include the details about the failure to stoop and scoop and it may make reference to the violation of the applicable local by-law. Further, the N5 can, and should, make reference to the impact that the failure to stoop and scoop has on other tenants and the landlord. The presence of feces around the yard and on the property presumably is unpleasant, smells, and makes it difficult to enjoy a yard or other common areas if the area is covered in Dog waste. How this impacts on the landlord or tenants is important to explain as the Board will consider how serious the violation is and whether eviction is necessary. Dog waste that smells to the extent of preventing windows from being opened, abandoned waste that is near walkways and is stepped in regularly, or the voluminous presence of dog waste making the use of a backyard, garden or sitting area impossible certainly qualifies as a substantial interference with the reasonable enjoyment of the property by the landlord or other tenants. For this a tenant can be evicted. The N5 is all about substantial interference so it is important to highlight how the offending conduct is a "substantial interference".
The Landlord and Tenant Board may give a tenant who hasn't scooped a second chance. However, as a landlord it is reasonable to expect that the Board will also impose a condition on the tenant that he/she always clean up after their dog failing which the tenant can be evicted under section 78 of the Residential Tenancies Act.
Requiring a tenant to clean up after their dog, every single time, and in the winter, is not unreasonable. In fact, failing to clean up after one's dog is illegal and it can get a tenant evicted.
Michael K. E. Thiele
www.ottawalawyers.com
What about homeowners who won't pick up their dog's poo in their own back yard. Our neighbour's yard is stench-ridden. Dog has been pooping there for about 7 years. Soil must be contaminated to depth. Who can make him clean it?
ReplyDeleteHi Doug: I don't know where you live but the law to enforce clean up is potentially available from your city or township. In Ottawa, there is an Animal Care and Control By-law that deals with animal fecal matter and prohibiting the accumulation of it and disturbing others. Hence a complaint to the City is all that is needed. You might also find authority in the Property Standards By-law generally.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Mike,
ReplyDeleteHere's an interesting situation for you to consider. I live in an apartment building in Arnprior. Last night all of us dog owners in the building received an email from the landlord instructing us not to put our dog poop bags in the garbage bin in the garbage room and instead to put them in a bin outside the building. I am not aware of the existence of an outside bin so I asked the landlord where such a bin was. He responded, 'any bin away from the property'. Again I asked for clarification and I got back "any public garbage bin". Despite the fact there are no public waste bins on any of the streets nearby, is this not absurd that the landlord should request tenants dispose of their poop bags off the property? I will be contacting Town Hall for their input... I also wonder why dog owners are being blamed for the smell of the garbage room and not tenants who place cat litter, baby diapers or rotten meat in the garbage bin.
Laurie Dupuis
Hi Laurie:
DeleteSometimes people try to do "indirectly" what they can't do "directly". I wonder if your landlord has had a recent problem with "pets" in the building and now is acting out against all pet owners? Focusing on the "poop" as you indicate doesn't make a lot of sense since the smell of dog poop is no worse than the smell of the other garbage you describe. In fact, I wouldn't accept at face value the challenge to the dog poop as most is in a tied off bag, designed for the purpose, and not really capable of sharing its odour from a sealed bag. So what is going on here? My guess is that the landlord takes issue with the presence of pets (for whatever reason), but knows that the law does not permit "no pet clauses". Being unable to prohibit pets he's decided to make pet ownership inconvenient, punish pet owners with a weird no poop in the garbage rule, and further develop a reputation for being anti-pet so tenants stay away. That anyway, is my guess, and it may be off entirely.
Regardless though, your landlord has a weird no pet poop in the garbage rule. The motivation doesn't matter as the impact is the same. Being compliant with building rules and being a good tenant is very difficult under such an unreasonable rule. Do you risk eviction proceedings, nasty notes, or other actions if you try to throw out pet poop in the garbage? Do you now have to become "sneaky" and try to disguise the bags? It all seems a bit much doesn't it?
In my view the no pet poop in the garbage anywhere on the property rule is a rule that contravenes the Residential Tenancies Act and is therefore void. The Rule, as the landlord tries to enforce it, breaches your RTA rights and you and other dog owners could bring a T2 application against the landlord. I do think you would be successful.
The legal logic of the argument is as follows. No pet clauses in a lease contravene the RTA (s.14 RTA). As a result they are void (s.4 RTA). Tenant's have a right to quiet enjoyment and a landlord shall not interfere with a tenant's reasonable enjoyment of the property (s. 22 RTA). A landlord breaching section 22 gives the tenant a right to bring an application against the landlord for a variety of remedies including rent abatement, order directing the landlord to do specific things, prohibit the landlord from doing other things (see T2 application on LTB website).
If the landlord developed a rule to deal with the disposal of pet poop that was reasonable, perhaps even mildly inconvenient, but rational, then I'd say the rule was legal and enforceable. However, the landlord's rule has the effect of making use of the property by dog owners effectively impossible or so inconvenient that the dog owner's reasonable enjoyment is excessively impaired. It is legal to own a pet in rental housing. It is illegal to prohibit pets in rental housing. The landlord's rule is motivated not by something rational but by a desire to get around the RTA and the pet rules.
In my view, the landlord may legally make a rule or develop a system to deal with "pet poop" if necessary, but it must minimally impair the reasonable enjoyment of the tenants and be reasonable. Telling tenants to find a disposal place somewhere in the community does not met the requirement of minimally impairing the rights of pet owners. If the landlord wants to install an outside garbage, create a special receptacle indoors, requiring sealed bagging of poop indoors (if that's an issue), then these are things that can be worked with. The outright prohibition is simply illegal.
DeleteThere was an interesting case in recent years where a landlord sought to increase the rent more for dog owning tenants than for non-dog owning tenants. The rent increase amount was permissible due to the building being exempted from annual guideline increases. The landlord was forthright and did not hide its rationale believing that rental units with pets had a higher cost in turnover and higher wear and tear attributable to the pets. The landlord did not want to spread this cost over all of the units by raising rent for everyone, instead the landlord wanted to rest the costs with the owners of pets. Ultimately, the rent increase for the pet owners is found to be illegal. The motivation for the increase sought to impair a right (pet ownership) and make it more difficult and expensive to own a pet in the building. Charging rent in this way would dissuade people from having pets and in the right amounts (rent increase) operate as a effective prohibition. All of this was found to be contrary to the underlying right, granted expressly and perhaps more impliedly, in the RTA that tenants have a right to have pets.
The solution with your landlord is to ask him to provide a proper receptacle for pet waste or to publish a reasonable rule for dealing with pet waste on the property. If the landlord fails, refuses, or asserts a draconian rule then consider an application to the LTB in Form T2. There is always the option of ignoring the rule and challenging the landlord to actually take action--but that is rather adversarial and perhaps a fight in this way is something you would like to avoid.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I have my tenant living beside our house (we own the house he is renting, but we also live right beside him), his dog keeps coming to our yard to poop. We have asked him numerous times over the last 1 months to please keep his dog on his side (there is a little wooded area between the houses about 40 feet),we have asked him to please watch his dog when outside, and here we are with his dog still pooping on our lawn. I just FB messaged him to come and pick it up now, he read the message and now just drove off. Is there a form I can send/give him?
ReplyDeleteHi: The form you use is the Form N5 that is available on the Landlord and Tenant Board website. It is a voidable Notice of Termination that can be voided by correcting the behaviour. Not cleaning up after a dog is indeed grounds for termination. However, for the action to be grounds in an N5 it needs to happen on the property of the residential complex. You mention living beside the tenant. Arguably, if this is all one big connected parcel then your property along with his property could meet the definition of residential complex as defined under the RTA. If that 40 foot wooded area is not yours and there is a separation by a different owner, city, province, etc., between you and the rental property the position of "residential complex" gets a little more difficult to argue. You might want to look at another issue--that perhaps being that his dog is off leash. Presumably you have a dog leash by-law where you live? If so, you can cite that in your N5 as he most definitely letting his dog roam off leash contrary to the by-law.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael,
ReplyDeleteI share a three-bedroom apartment with a mother and her thirty year old daughter in a small three-story building in Toronto. Each of us pays rent separately to the landlord. My room and the mother’s room each have a patio door leading to a shared wooden deck. The mother and daughter own two dogs (a Great Dane and a dachshund), which they let out on the deck several times a day to pee and poop. The dogs used to poop all over my side of the deck. After I complained, they put up a two foot high barrier to separate the deck into two sections. The barrier has blocked my access to the back staircase, which acts as a fire escape. The only way I can get to the garbage and recycling bins at the back of the building is to climb over the barrier. They’ve also blocked the staircase to the third floor deck, creating a tripping hazard for the upstairs tenants. The mother flushes the poop with water, but the deck is starting to smell. At Christmas, the mother was away for several weeks and there was poop all over their side of the deck because the daughter wasn’t picking up. The dogs were stepping in their own poop. The dachshund barks and squeals day and night, often waking me up, because they let the dogs run all over the common areas. This has been going on for almost a year. I have complained to the landlord, as well as the building manager who owns a bicycle repair shop on the main floor. The building manager is annoyed because the pee and poop go all over the motorcycles he keeps under the deck. There are other problems as well. Since the start of Covid-19 they’re constantly in the kitchen cooking and eating, even in the middle of the night. They refuse to let me get my food from the fridge so I can eat it in my room, which means I have to wait hours for them to leave the kitchen. One time they told me I’d have to wait 24 hours before I could get to the fridge. They leave garbage and dirty dishes all over the kitchen for days at a time. They've piled junk all over their side of the deck, which now looks like a landfill site. I have given the building manager dozens of photos of the deck, dog poop, and dirty dishes. These unsanitary practices are causing me constant stress and I feel like a prisoner in my own home. To make matters worse, I recently learned that they wanted to take over my room so that they’d have the entire apartment to themselves. The landlord wants to evict them once the no evictions order is lifted, but he seems to have no idea how to proceed. How do you suggest he handle the situation?
Thanks in advance for any help.
Hi: Based on your explanation of the facts I'm guessing that you live in a rooming house--even if it is just a regular house/apartment/townhome that is being treated like a rooming house. In a "rooming house" situation the landlord has a separate lease with each of the occupants and you are paying rent for the use of your room (which is the rental unit) and you get to use the common areas as part of your lease (kitchen, bathroom, living rooms, hallways etc.). You are responsible for your rent only (not that of the others the apartment) and you are responsible for your own behaviour and damage that you cause and not the behaviour of the others or for the damage they cause.
DeletePresuming that this is an accurate description of your living arrangement (i.e. a rooming house), then your landlord would take action against the mother and her daughter. The way he would do this is to serve a Notice of Termination. From what you describe I would suggest a Form N5. The form is available on the landlord and tenant board website. It is a multi-step process and the tenants have an opportunity to correct their behaviour and void the notice. If they don't change their ways then the N5 process leads to the completion of (perhaps) a second N5 and then an L2 application--which is the application to the Landlord and Tenant Board.
If your landlord is unfamiliar with how the forms work and the details of it he really should consider retaining an experienced landlord and tenant law lawyer or paralegal. The key is experience as the N5 process is rather tricky and complicated. There are guides on the LTB website and I have several articles in this blog explaining the N5 process (if your landlord wants to think about doing it himself).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteAs a proud homeowner myself, I'd want to keep mine and my neighbors' lawns in good condition. People in my neighborhood are very good citizens and they do their best to cleanup after their pets by stoop and scoop. The only issue is they can only pick up the poop, but not much they can do about the pee, which also affects the condition of the lawn. To improve the situation, I have made a gadget that washes away the poop into the soil, along with the pee in a very sanitary way. I thought it's a good idea but a neighbor has the opinion that such an approach might not comply with the bylaw. Appreciate to hear your thoughts on this subject.
Hi Tom:
DeleteThanks for this interesting comment, even if it is a little outside the usual for this blog. Of course, without seeing or understanding how your gadget works, I can't say much about it. Whether your gadget can replace "stooping and scooping" I think would depend on whether your gadget can accomplish the goal of the by-law in the particular City/town.
In Ottawa the wording of the bylaw is reproduced below. Does your gadget accomplish what the wording of the by-law requires? If so, then perhaps what you've invented can indeed replace the poop bag!
Sections 37 to 41 - Stoop and scoop
Section 37
Every owner of a dog shall immediately remove any feces left by the dog in the City:
on a highway or roadway;
in a public park;
on any public property other than a public park; or
on any private property other than the property of:
the owner of the dog; or
the person having care, custody or control of the dog.
Section 38
Every owner of a dog shall dispose of any feces removed pursuant to Section 37 on his or her premises.
Section 39
Every owner of a dog shall remove from his or her premises, in a timely manner, feces left by such dog, so as not to disturb the enjoyment, comfort, convenience of any person in the vicinity of the premises.
Section 40
Section 37 does not apply to a handler of a service dog, where the handler is unable to remove the excrement left by such dog due to a physical disability or impediment.
Section 41
Section 38 does not apply to a blind or visually impaired handler of a service dog if the feces was left while the dog was off the premises of the handler and during the course of fulfilling its duties
Good luck with the inventing.
Michael Thiele
www.ottawalawyers.com
What is considered a timely manner for Section 39 please?
ReplyDeleteSection 39:
Every owner of a dog shall remove from his or her premises, in a timely manner, feces left by such dog, so as not to disturb the enjoyment, comfort, convenience of any person in the vicinity of the premises.
This is a very good question as an entire defence can turn on the definition of "timely manner". Some might be conclude that timely means "immediate" but if that were the case then why wouldn't the bylaw say "immediate". Clearly, the bylaw contemplates that there can be some delay between the pooping and cleaning up. Given that this is talking about poop on one's own property the definition is perhaps more generous than one might think.
DeleteThe bylaw itself does not have any definition of "timely manner". There does not seem to be any caselaw interpreting this section of the bylaw either. So any official interpretation will likely have to await some caselaw being made.
If I had to work out a principled way of determining "timely manner" I would focus on the reason that the bylaw requires the poop to be picked up in a timely manner--and that is so as "not to disturb ...". This reason is probably useful in determining what "timely manner" should mean. If the dog poop is on a 10 acre property fenced off from the world then perhaps "timely manner" means never as the poop can return to earth before it ever has a chance of disturbing the enjoyment, comfort, convenience of any person in the vicinity of the premises. The other end of the spectrum then is perhaps a dog owner with a patch of grass or a balcony surrounded by other tenants or owners all with their own patch of grass or balcony. If the smell of poop quickly spreads to the neighbour's grass or balcony then it is likely reasonable to define "timely manner" closer to "immediately".
As a result of the above logic I think "timely manner" means something different for each circumstance. The definition varies.
Hi,
ReplyDeleteMy landlord does not clean his dog poop up. He lives next door and his dog poops infront of my deck. I've asked him to clean it before and he did it reluctantly. Most recently, he has told me he's upset that I asked him to pick up his poop. It's been 2 weeks and he hasn't picked up any of the poop.
What can I do?
I recommend that you gather evidence via photos and video. Then you can notify the City/Town that you live in and see if they have a bylaw dealing with the picking up of dog waste. From what you're describing it sounds like the dog is pooping on your rented property even though it is owned by the landlord. I think this should result in a ticket from your City/Town. Aside from that, you can always file a T2 application against the landlord seeking an Order requiring him to pick up after his dog and also for a rent abatement.
DeleteHello,
ReplyDeleteMy landlord has been taking pictures today as I was walking up with my dogs of the melted poop that is now visible from the warm weather. Because it’s nice today I was able to chip them out of the snowbanks that were hidden throughout the winter.
Can the landlord issue a N5 or send the pictures to the city if it is now all cleaned up?
The landlord is always entitled to issue an N5 but that doesn't mean that it is valid. Whether your circumstances justify an N5 would require some more details. Context is everything. If you have exclusive use of the property (i.e. you rent the whole thing), and the location of the dog pooping is "your space", then I personally would lean to the side that the N5 is a waste of time. Of course, the key is that once the snow melts or the poop is accessible you do clean it up, hose it into the ground, or otherwise deal with it. I say this because I think it is rather common for people to let their dogs poop in the snow and simply leave it until the spring. The poop freezes and is basically inert during the winter. Asking a dog owner to trudge through the snow and to dig in snow for poop in the freezing temperatures seems a bit unnecessary. Hence, the rather common practice of dog owners leaving dog poop in the snow over the winter. Remember, the basis for the N5 is 1) substantial, and 2) reasonable---i.e. substantial interference with reasonable enjoyment. In the warmer months the need to scoop immediately is different because you often have smell to contend with in addition to the fouled lawn and flies, etc.. Do you get to substantial and reasonable breaches for winter poop? I don't think so.
DeleteIt is different of course if your dog is pooping in the snow in a common shared space. It would make it impossible for other people (likely kids) to play in the snow if it is burdened with dog poop hidden in the piles of snow. In this circumstance I think substantial and reasonable would be breached. Hence, an N5 is likely.
Regardless of the circumstances, an N5 is voidable and simply scooping solves the issue and nothing happens.