Humber-Happenings-Magazine-Spring-2016

PROFESSIONAL INSIGHTS
COURTS CAN BOOT OUT
CONDO OWNERS
FOR BAD CONDUCT
BY MARTIN RUMACK, B.A., L.L.B.
If you are the owner of a condominium
unit you may feel secure in
the knowledge that you own title to
your little piece of the building and can
do as you wish, subject of course to certain
reasonable rules and general
constraints on both use and behavior
that apply to all owners, found in the
Condo Corporation’s governing documentation
(namely the Declaration,
By-laws, and Rules).
It may surprise you that in more than
a few cases, condo unit owners have
been forced against their will to vacate
and sell their units, under powers
granted to courts under the Ontario
Condominium Act, 1998. While the circumstances
are admittedly unusual, the
common thread among them is that
courts were forced to take drastic measures
against one misbehaving owner in
order to effectively keep peace and harmony
amongst the others.
COURT REVIEW AND REMEDY
In these kinds of cases – which typically
involve egregious, dangerous and disruptive
owner behavior over a period of time
— the courts’ intervention will be
prompted by an application by the condominium
corporation itself, almost
always after it has given the offending
owner ample warning to stop.
Courts must evaluate the behavior
against the provisions of the Condominium
Act, 1998, to see whether it is “oppressive
and unfairly prejudicial” towards either the
corporation itself or the other owners. They
will also scrutinize the provisions of the
particular corporation’s Declaration, Bylaws,
and Rules, and will also consider
whether the offending owners’ conduct
poses a health risk.
Once it has concluded that a particular
unit owner is disruptive, unruly or
unmanageable, the court has a spectrum
of remedies at its disposal. While not the
most common, the most drastic is for the
court to force the intractable owner to
vacate and sell their unit, almost always
after several prior requests and warnings
by the Condominium Corporation have
gone unheeded.
Even where the court-ordered remedy
falls short of forcing the owner to sell
their unit, courts will frequently force the
owner to pay for any remediation or
clean-up costs arising from their misconduct
and may even require payment of
the legal costs incurred by the condo corporation
to bring the matter before the
courts in the first place.
A PARADE OF TROUBLEMAKERS
So what kinds of situations will attract
the courts’ intervention? On the serious
end of the spectrum there have been
cases involving physical and verbal
assault, intimidation and vandalism.
This may not surprise you, since the
owners’ misconduct clearly put the safety
and right to peaceful enjoyment of other
owners in jeopardy; it seems only fair
that the collective rights of all owners
should outweigh those of the individual.
However, courts will readily step in even
where the conduct is not so egregiously
harmful to others.
For example, in a case called York Condominium
Corporation No. 41 v. Schneider,
2015 ONSC 3919 (CanLII), the problem
entailed an infestation of cockroaches
and a pair of unit-owners who refused to
comply with a prior court order requiring
them to facilitate access to their unit to
allow for clean-up.
Specifically, the court had previously
ordered the owners to allow condo corporation
representatives and extermination
crews to enter and clean the unit, and to
carry out pest extermination measures.
They were also ordered to keep the unit
clean to avoid future infestation and
foul odours (which they refused to
acknowledge, and indeed blamed on the
neighbours’ cooking). Despite these measures
the owners refused to cooperate. Faced
with this impasse, and since the owners had
received numerous warnings in the past,
the court had no choice but to order them
to vacate and sell for the overall good of the
owners and the corporation.
WHAT’S THE BOTTOM LINE?
What these cases illustrate is that Ontario
courts are more than willing to take
drastic steps in the face of unreasonable,
dangerous, and intransigent misconduct
by owners, particularly where it impinges
on safety, or on the enjoyment by others
of their individual units or the condo
development as a whole.
More to the point, the decisions
implicitly acknowledge that while condo
unit owners have defined legal ownership
rights, they still remain subject to a
certain level of restriction on their conduct.
These two competing rights and
interests must sometimes be re-balanced;
the Condominium Act, 1998 allows
courts to step in and do so, when the
greater good is at stake. HH
For more information contact Martin Rumack
at martin@martinrumack.com
18 HUMBER HAPPENINGS | SPRING 2016 HUMBERBAYSHORES.ORG