KEEPING THE COMMON ELEMENTS KOSHER: MORE TOLERATION AND LESS LITIGATION

In the past, condominium corporations in Ontario have often been faced with legal challenges relating to the human rights of the condo’s residents, which the courts have resolved one way or the other. These disputes included matters involving reasonable accommodations, accessibility issues, and the rights to own pets.

However, issues associated with unit owners retrofitting common elements with religious fixtures such as Mezuzah’s have not been tested in court. This is an interesting issue to watch for.

A Mezuzah is a small case affixed to the outside doorframe in a Jewish home and is inscribed with a Hebrew scroll containing religious significance. The Mezuzah can be affixed to the outside doorpost with nails, screws, glue, or double-sided tape.

It is not uncommon for condominium rules, or declarations to include prohibitions against affixing objects to the common elements of the condominium. The purpose of these prohibitions is to prevent the condominium’s common elements such as the lobby walls, and hallways from becoming cluttered with unwanted decorations, and advertising. Even section 98 of the Condominium Act states that an Owner cannot make an addition, alteration or improvement to the common elements unless certain conditions are met, one of which is that the condo board approves it.

Therefore, legally speaking, if an owner wants to affix a Mezuzah to their condo doorpost, they may not be allowed to unless they first seek the approval of the condo board, which must agree to it. There are three possible answers a condo board may give to this proposition:

1). “SURE Shlomo! You may affix your Mezuzha”

2). “ NO WAY Shlomo! No Mezuzah’s permitted”

3). “ Well Shlomo, we’ll approve your Mezuzah but if it causes damage to the doorpost, we will hold you responsible to cover the cost of any repair.”

In my opinion, the third answer is probably the most reasonable response a board could provide as it balances the preservation of the common elements with the religious freedoms of those who wish to affix a mezuzah and avoids going down the path of litigation.

However, the practical reality is that most Mezuzahs are probably affixed without owners first seeking the permission of the board. Most people don’t think of affixing a Mezuzah as a major alteration meriting board approval. The best approach for a board in this situation is probably to tolerate it rather than demand its removal, which would raise very sensitive issues. In doing so the board should charge the unit owner for costs associated with damage it may cause rather than banning it outright. The main point being is that the condo board should seek legal advice before enforcing rules or by-laws, which may affect a religious practice.

  • Juan

    It seems surprising to me that a Mezuzah would be an issue especially when they can be a piece of decoration similar to a door knocker etc..for those unfamiliar with Mezuzot look at some of the better mezuzah stores such as http://www.mezuzahmaster.com for examples. If you can hang a welcome sign on your home you should be able to hang a nice Mezuzah.

 
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