Breaking Rules

When residents repeatedly break condo rules

Forced unit sales an extreme remedy — even after esclating enforcement measures fail
Tuesday, September 16, 2014
By Josh Milgrom

Much to the chagrin of directors and property managers, residents who exhibit aggressive, threatening and violent behaviour, and residents who repeatedly break the condo rules, are not uncommon. Ontario’s current Condominium Act does not give a condominium corporation the power to evict an owner or to force an owner to sell his or her unit. However, the Act gives condominium corporations some tools to address situations where owners are thought to present a danger to their community, such as the power to apply to the courts to force the sale of a unit.

Scheme of the Act

Section 117 of the Act prohibits activity that is likely to damage the property or cause injury to an individual. Section 119 of the Act requires owners and residents to comply with the Act, the declaration, bylaws, and rules. And finally, section 134 of the Act gives a condominium corporation the power to make an application to the Superior Court of Justice when an owner breaches the Act (and declaration, bylaws, and rules). The court has broad discretion to order any relief it believes is just in the circumstances.

Recent court decisions

Courts are not so quick to pull the trigger on the sale of a unit. As was illustrated by the recent case of Peel Condominium Corporation No. 98 v. Pereira, the threshold for a forced sale is relatively high in Ontario it is, after all, one of the most extreme and draconian remedies.

The application outlined complaints that the respondent had verbally assaulted and sworn at the superintendent and other residents, thrown a stepladder at the superintendent, assaulted a previous superintendent, thrown cat litter and feces from his balcony (which on one occasion struck the condominium corporation’s landscaper on the head), and engaged in various other non-violent breaches of the condominium corporation’s governing documents. The court found that the respondent had breached sections 117 and 119 of the Act and behaved in an inappropriate and abusive manner, including the repeated use of threatening and offensive language.

While the behaviour was “serious and troubling,” the judge wrote in his ruling, the actions of the respondent fell “far short” of the extraordinary behaviour required to force a sale. The court believed that a lesser penalty would suffice at enforcing compliance and ordered that the respondent comply with the governing documents and behave appropriately not a particularly onerous requirement by any standard.

The case serves as a reminder that forced sales will typically only occur as a last resort, when all other efforts to enforce compliance have failed or where the behaviour is so egregious that it renders the relationship between the owner and the community inherently incompatible such as the recent case of York Condominium Corporation No. 301 v. James.

According to the application, the respondent had acted violently, abusively and inappropriately towards the residents, staff and property management and breached a court order in the process. Among other types of misconduct, she had threatened and assaulted various people, started two fires in her unit, placed human feces in a newspaper and stuffed it into a mail slot of another unit and exposed herself to two people while naked.

While the court recognized the difficulty of forcing the respondent to vacate her unit (particularly considering that she suffered from a mental illness), an individual’s rights must always be balanced against other competing interests: it would be unfair for the condominium’s residents, visitors and staff to be continually subjected to what the judge described in his analysis as disturbing, disgusting and threatening behaviour. The respondent’s conduct was simply incompatible with, and contrary to, many values enshrined in condominium living. The court ordered the sale of the unit; it did not believe that any remedy other than a forced sale would be sufficient to address her conduct.

In York Condominium Corporation No. 82 v. Singh, the respondents had previously been found to be selling alcohol and cigarettes out of their unit contrary to the declaration, resulting in disorderly conduct in the common elements. The respondents apparently continued selling alcohol and cigarettes, contrary to a 2011 court order prohibiting these sales. After finding the respondents in contempt of this order, the court ordered the sale of the unit. Similarly to the respondent in the James case, the respondents were clearly unable, or at least unwilling, to comply with the condominium corporation’s governing documents the forced sale was indeed a last resort.

Chronic (non-violent) rule-breakers

But what about activity that is not dangerous per se? Too often a small percentage of residents chronically break the rules whether it is frequent arrears in common expenses, leaving debris in the hallways, or excessive noise emanating from a unit. If residents display chronic misbehaviour, what is a condominium corporation to do?

Wentworth Condo Corp. and Brendan Taylor offers some insight. In this case, affidavits complained of a resident’s alleged excessive noise, vandalism, and aggressive and threatening behaviour towards unit owners as well as assaultive behaviour towards other tenants and a contractor. The condominium corporation had attempted to enforce compliance with the governing documents by sending two letters warning the resident to cease and desist his misconduct, threatening legal action should he refuse to comply.

Like many residents accused of repeatedly breaking the rules, the resident refused to comply. The condominium corporation brought an application pursuant to section 117, 119, and 134 of the Act to enforce compliance with the governing documents. Although aggressive and inappropriate, the behaviour did not quite meet the threshold required to force a sale. The condominium corporation recognized this in seeking an order (which it was granted) requiring the resident to behave appropriately and to comply with the governing documents again, not a particularly onerous request.

Steps to enforce compliance

As with all enforcement matters in a condominium setting, it is crucial to investigate alleged wrongdoing or breaches of the condominium corporation’s governing documents. Each incident must be considered in its own unique circumstances to determine the appropriate course of action. Is there danger to property or person? Or is an owner simply leaving some boxes in a parking unit contrary to the declaration?

One step that should not be overlooked is the importance of documenting the breach in as much detail as possible.

Utilizing and documenting escalating enforcement measures is a key element of effective enforcement; courts will consider whether the condominium corporation provided the owner with an opportunity to correct the misconduct before escalating the matter to its legal counsel.

As a general rule, condominium corporations should send a compliance letter to the resident demanding the breach be rectified, followed by a second compliance letter if the resident fails to comply. If the owner still fails to comply, it may be time to call the lawyers. All complaints and breaches should continue to be documented throughout all stages of enforcement.

Even though an owner may cause incredible frustration for directors and property managers, only on rare occasions would a breach (even a continued one) be extraordinary enough to justify a forced sale.

Josh is an associate in Aird & Berlis’ condominium group. His practice is focused on advising condominium corporations on all matters relating to the Condominium Act.