Keeping the Peace in Condos and Rule Enforcement - A Manager's Opinion Matters

Time August 17, 2012 User Benjamin Rutherford Email Print Comment 0 Comments Share Link

In a recently released decision dealing with a Toronto condo, York Condominium Corporation No. 137 v. Hayes, the court made restraining orders to prohibit the conduct of a unit owner who had assaulted other owners, and who had also verbally abused and harassed owners and contractors of the condominium.

 Specifically, the unit owner was ordered to:
  • to be of good behavior and keep the peace while on any property associated with the condominium;
     
  • to cease and desist from uncivil, improper or illegal conduct that violates the Act or declaration, bylaws or rules of the condominium;
     
  •  to refrain from assaulting, verbally abusing, swearing at, harassing, threatening or intimidating any member of the board, unit owner or occupier or staff member, contractor or other person doing business with the condominium including, without limitation, any person who has sworn an affidavit or provided evidence of any kind in this application; and
     
  • to refrain from approaching, within 15 feet, except at a duly authorized board meeting or duly authorized meeting of unit owners certain other owners and residents in the building.
In making the orders the court specifically contemplated giving the owner a chance “to demonstrate her willingness to change and to conduct herself in accordance with the rules which she agreed to when she purchased her unit” failing which the condo is at liberty to make further application to court for her to sell her unit.
Among the reasons that York Condominium Corporation No. 137 v. Hayes is important is that it reinforces that unit owners must keep the peace while they are on condominium property and that a condominium corporation is entitled to apply to court for orders that have the effect of keeping the peace. In fact, in considering a condominium corporation’s right to apply to court for relief, the Honourable Justice Penny writes that “Where most unit owners are following the rules, the court is, in effect, “duty bound” in the judicial exercise of discretion to give the condominium the assistance of the court.”
 
In the case, the unit owner argued that the condominium had no right to bring the application because it had not complied with section 23 of the Condo Act. Section 23 of the Condo Act permits a condominium corporation to bring an action for damages to the common elements or units, or the basis of a contract to which it is not a party (so, for example, a condominium corporation could sue a developer for a breach of warranty contained in an agreement of purchase and sale for a unit). However, before a condominium corporation commences such an action, it must give notice to owners. However, the court clearly distinguishes a compliance application brought under section 134 of the Condo Act from an action commenced under section 23.
 
One of the very interesting features of the case is the consideration the court gave to the property manager’s opinion that the unit owner, Hayes, had breached the condo’s rules by causing noise or nuisance.
 
Rules are common in condos and provide, as here, that a unit owner cannot cause noise or nuisance which, in the opinion of the board or manager, disturbs the quiet enjoyment of the property by other owners. In this case, the property manager provided affidavit evidence which included reference to the many complaints he had received and that, in his opinion, the unit owner had breached the rules.
 
In finding that the condominium corporation had made out on the evidence that the unit owner had breached the Condo Act and the condo’s rules, the court took into account the property manager’s views when it writes as follows at paragraphs 21 and 28:
 
Rule 8 of the condominium provides that owners shall not create or permit the creation of any noise or nuisance which in the opinion of the board or the manager may or does disturb the comfort or quiet enjoyment of the property by other owners (in his affidavit, the then manager, Mr. Farrow, expresses the opinion that the respondent’s behavior has been disturbing the comfort or quiet enjoyment of the property by other owners)…
There is also, in my view, no serious doubt that the respondent’s conduct constitutednoise or nuisance which a reasonable manager could conclude (and in this case did conclude) would disturb the comfort or quiet enjoyment of the property by other owners and was thus in violation of Rule 8 of the condominium’s Rules.
Click here to view the case.
Tags: disruptive owner,  manager,  rules
Categories: Condo Litigation

Municipal By-Laws and Condominiums – What a Condominium Board Needs to Know

Time December 30, 2011 User Benjamin Rutherford Email Print Comment 0 Comments Share Link

Municipal by-laws set out rules to help form the basis for orderly living in a community. Municipal by-laws address a number of things including: what use can be made of a property (for example, whether you can run a business there or whether it can be used only for residential purposes); the number and kinds of pets a person can have, and; property standards (for example, maintenance and repair issues, storage of things on the property, and guarding against unsafe conditions).

The Condominium Act, 1998, and a condominium corporation’s declaration, by-laws and rules, also set out things that help form the basis for orderly living in a community. Like municipal by-laws they also address, among other things, what use can be made of the property, the number and kinds of pets a person can have, and property standards. In addition, however, a condominium corporation’s declaration, by-laws and rules act as an individual code which governs, regulates, and helps create and define the character of individual condominium communities.

Even though something might be permitted under a municipal by-law, a condominium declaration, by-law or rule can still prohibit the same thing. For example, City of Toronto By-Law 349 (which is the City of Toronto by-law that deals with animals) permits people to keep up to a maximum of three dogs, however, if a condominium declaration in Toronto states that no pets are permitted, then a person living in the condominium is not allowed to keep any dogs on the property. Another example is that a municipal by-law might permit signs or advertisements, but if the condominium declaration or rule prohibits signs and advertisements, then a person in the condominium is not allowed to display any.

Municipal by-laws and condominium documents may address the same problem and provide alternate means of enforcement. For example, municipal by-laws may address what noise a person can make and when. Depending on the type of noise or disturbance it could be the police or someone else who can be called to enforce the by-law. Similarly, condominium declarations and rules almost always stipulate that a person cannot make noise that disturbs the enjoyment by other people of the units and common elements. In such a case the Condominium Act, 1998, provides that mediation/arbitration or court proceedings can be commenced to address a contravention. 

Condominium declarations, by-laws and rules almost always stipulate that a person cannot do something on the condominium property that contravenes a municipal by-law. If there is a contravention of a municipal by-law on condominium property, the issue can be dealt with as a breach of the Condominium Act, 1998, declaration, by-law or rule.

Condominium disputes are rarely confined to a single contravention of a municipal by-law, and are rarely settled simply by enforcing the municipal by-law. Condominium disputes most often need to be addressed under the enforcement procedures in the Condominium Act, 1998. These procedures are specifically designed to deal with condominium disputes, and take into account the myriad of interests in a condominium corporation such as costs, personal relations, and consistency of enforcement. It is important to remember in this context that the party who commences enforcement proceedings under the Condominium Act, 1998 is able to help craft a solution to the problem that is appropriate to the condominium. When in doubt consult your condominium lawyer!

 

Tags: by-laws,  declaration,  governing documents,  municipal by-laws,  pets,  rules
Categories: 1998,  condominium act

Can a condominium restrict rentals in Ontario?

Time September 30, 2011 User Mario Deo Email Print Comment 0 Comments Share Link

Restricting rentals of condo units in a building can affect individuals purchasing units in the condominium market and more specifically, the investor-owned units. However, those who plan on owning and residing in the unit may invite such restrictions because of the fear that rented units would generally have a negative effect on the community. Our firm received an inquiry regarding whether Ontario Condominiums are able to impose such restrictions on condo rentals. 

Q: I have been told by a couple of owners of rules in their Florida condos that require an owner to occupy a purchased unit for a period of 3 years before being eligible to put the unit into rental.  Is such a rule allowable in Ontario?  I further understand from these owners that there is a stated percentage of units allowed to be rental properties and no more.  Is such a rule allowable in Ontario?

A: Unfortunately the answer is no to both questions for Ontario. Our law firm has argued the leading case in the restriction of rentals in Ontario which allows for the passage of a rule by the board, which requires all leases to be a minimum of 12 months. Beyond that, the rental of units cannot be restricted except, of course, that tenant residents must comply with the same provisions as owner residents, that the landlord is responsible for any tenant transgressions, and that a copy of the lease must be provided to the corporation (see section 83 of the Condominium Act). It is the same legal philosophy that has not allowed adult only buildings in Toronto and the rest of the Ontario for that matter. I do not agree with these restrictions on condominium communities, however there is a provincial election coming up! A condominium should certainly be allowed to forbid rentals. Why not? It is their property to govern and the restriction does not hurt anyone if there is ample notice of it (which is simple to do).

Tags: rentals,  rules
Categories: 1998,  condominium act
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