The recent decision in Carleton Condominium Corporation No. 25 v. Eagan sheds some light on the factors that a court may consider when faced with an owner who fails to treat bed bugs in his or her unit.

The facts of the case are as follows: The condominium discovered that a unit was full of an excessive amount of debris and was infested with bed bugs. Over a two-year period, the condominium sent various letters to the owner about the required work. The owner refused to prepare the unit for treatment, so the condominium brought an application against the owner claiming that the owner failed to maintain and repair his unit.

The judge reviewed the condominium’s declaration and the relevant provisions of the current Condominium Act and concluded that the owner breached both when he failed to prepare his unit for treatment for the bed bugs. The judge also found that the owner breached section 117 of the Act because he allowed a condition to exist within his unit that was likely to damage the property or cause injury to an individual.

Specifically, the judge found that the “bed bug infestation is a condition which is conducive to propagation and spread to the other units, as may have been demonstrated by the finding of bed bugs in [the unit across the hall from the owner’s unit] in the summer of 2014.” As a result, the judge made the following order:

1. The owner must prepare his unit for treatment of bed bugs according to the directions provided by the condominium;
2. If, after 30 days, the unit has not been prepared for treatment, the condominium shall be granted access to the unit for the purposes of preparing it and carrying out the required treatment;
3. If the condominium is required to take steps for the owner, it shall be able to remove, discard or store items as it deems necessary;
4. The owner must pay all costs associated with the bed bug treatment; and
5. The owner shall pay the condominium $9,703.80 for its legal costs.

All amounts owing by the owner were to be added to the common expenses payable for the unit.

Key to success: Act reasonably

In this lawyer’s opinion, the condominium in this case was successful because it acted reasonably.

First, the condominium acted reasonably when demanding that the owner maintain the unit. The condominium made numerous attempts to inspect the unit and treat it for bed bugs. The condominium also provided instructions to the owner on how the unit needed to be prepared for treatment. The condominium only started the court application when it became obvious that the owner was not going to comply with his obligations.

Second, the condominium sought relief during the court application that was reasonable in the circumstances. The condominium sought an order that would give the owner 30 days to prepare the unit for treatment.

The condominium did not seek an order that would give it immediate possession of the unit so it could complete the work. While an order for immediate possession may be necessary in some instances, a bed bug infestation does not rise to the level required for such an extreme remedy. The reasonableness of the condominium made it more likely that the judge would grant it the order sought, including the condominium’s costs.

Legal issues with pest control

The first step when faced with a suspected bed bug infestation in a unit is to review the declaration to confirm that the owner is responsible for maintenance and repair within the unit and that there are no exceptions for pest control within the condominium’s documents. Most declarations require the owners to maintain and repair their units, but a few do not. For the remainder of this article, assume that the owner is responsible for his or her unit.

The condominium should also inspect the unit to confirm the presence of bed bugs. The condominium must give the owner reasonable notice in writing of the proposed date and time for the entry according to section 19 of the Act. If the owner refuses to grant access to the unit, the condominium should speak with its lawyer to discuss to the next steps, which may include a court application for an order requiring the owner to grant access to the unit.

During the inspection, the condominium’s pest control contractor should be present to provide an opinion about the presence of bed bugs. If the contractor confirms that there are bed bugs in the unit, the condominium should send a letter to the owner to demand that he or she treat the unit for bed bugs. The letter should include a reasonable deadline for the treatment.

Once the deadline has passed, the condominium should make entry to the unit again to inspect it for bed bugs. The pest control contractor should be in attendance again to provide an opinion. If the bed bugs remain, a second or third letter should be sent to the owner. After two or three letters, if the owner still fails to treat the unit, the condominium should involve its lawyer.

Finally, it may be necessary for the condominium to inform the other owners that there is an infestation in one of the units because of the chance that the bugs could spread to adjacent units. An inspection of adjacent units may also be necessary.

While the costs to treat an infestation within a unit are generally the owner’s responsibility, the costs to treat the common elements or other units cannot be charged back to the owner unless the condominium can prove that the infestation originated in the unit. This will be difficult to prove, but it may be worth a discussion with the condominium’s pest control contractor.

While there had been much written in the past few years about bed bugs in condominiums, this is the first reported case in Ontario where a court has declared an owner to have failed to maintain his unit because of a bed bug infestation. The case is important because the court also declared a bed bug infestation to be a dangerous condition within the unit, which allowed the condominium to commence proceedings in the court and avoid mediation and arbitration.

Michelle Kelly is a partner at Sutherland Kelly LLP located in Guelph. She serves condominiums, unit owners, and developers across the province. Michelle practises exclusively in the areas of condominium and real estate law.