An owner of a condominium unit may feel secure in the knowledge that he owns title to his little piece of the building and can do as he wishes, subject to certain reasonable rules and general constraints on use and behaviour that apply to all owners, and which are found in the condo corporation’s governing documentation (the declaration, bylaws and rules).
But 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. In other words, courts can evict condo owners. 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 among the others.
In these kinds of cases – which typically involve egregious, dangerous and disruptive owner behaviour 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 behaviour against the provisions of the provincial condominium act 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 his 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 and move out, courts will frequently force the owner to pay for any remediation or clean-up costs arising from his 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. For example, in a recent case, York Condominium Corporation No. 41 v. Schneider, 2015 ONSC 3919 (CanLII), the court declined to add the corporation’s legal costs to the common expenses, concluding that “to have the (condominium corporation) and the other unit holders bear the legal costs of this application, which are incurred due to the conduct of (one misbehaving unit owner), would be unfair.”
A parade of troublemakers
So what kinds of situations will attract the courts’ intervention? A round-up of Ontario decisions from the past few years shows the types of owner misconduct that attracts a court-ordered, forced-sale remedy.
One of the early cases in this category is Metro Toronto Condominium No. 747 and Natalia Korolekh, 2010 ONSC 4448 (CanLII. It involved an incorrigible and unmanageable unit owner in a senior citizens’ building. The court described her transgressions as “serious”. It includes physical assaults on other unit holders, acts of mischief against their property, racist and homophobic slurs and threats repeatedly made against other unit holders, playing extremely loud music at night, watching and bothering other unit holders and using her large and aggressive dog to frighten and intimidate other unit holders and their children, as well as failing to clean up the dog’s feces.
After confirming that it had the requisite power under the act and the corporation’s own governing documents, the court ordered the owner to vacate and sell her unit within a stipulated period of time.
The outcome was the same in a more recent case, York Condominium Corporation No. 301 v. James, 2014 ONSC 2638 (CanLII). The owner in question had a long list of worrisome and dangerous conduct, including starting two fires in her unit, threatening others and leaving human excrement on their doorsteps, punching someone in the face, exposing herself and making obscene gestures, and forcing her way into another owner’s unit. Even though the court found that the owner clearly had a mental illness, and commented that ordering her to sell her unit might impose hardship on her, it had no other choice. It had to keep in mind the welfare of the other men, women and children in the building “who have been confronted with behaviour that ranges from disturbing to disgusting to threatening.”
In yet another decision featuring excrement (a recurring theme?), the case of Peel Condominium Corp. v. Pereira, 2013 ONSC 7340 (CanLII), had a different result. There, the offending unit owner engaged in many troubling incidents, but among the most disturbing was his established habit of throwing cat feces and litter from his balcony (and on one occasion, hitting a landscaper on the head with it). He blatantly denied the recurring behaviour, yet continued to do it even after he was repeatedly warned. He also failed to pay a $170 bill for cleaning up the litter, assaulted the building superintendent (which resulted in criminal charges that were later withdrawn), stole a bench from the building lobby (which was caught on surveillance video) and engaged in numerous incidents of verbal assaults of other residents and the property manager.
Despite finding his conduct to be “extremely serious and troubling”, the court was more temperate in its ruling: it expressly ordered the owner to comply with the act, to abide by the condo corporation’s declaration, rules and bylaws and to refrain from future verbal or physical assaults and intimidation. Perhaps most importantly to the other owners, he was specifically ordered to refrain from throwing anything from his balcony in the future. However, the court cautioned that the breach of any of these conditions would result in a court-ordered immediate sale of the owner’s unit.
Lesser misbehaviour counts too
These cases 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 the earlier-mentioned case, York Condominium Corporation No. 41 v. Schneider, 2015 ONSC 3919 (CanLII), the problem was not excrement but rather cockroaches – an infestation of them – 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 (for which they refused to accept responsibility and blamed on the neighbours’ cooking). Yet the owners completely refused to co-operate. 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.
Finally, it was contraband beer sales that prompted the court to intervene in a case called York Condominium Corporation No. 82 v. Singh, 2013 ONSC 2066 (CanLII). Despite repeated warnings from the condo corporation (which were wholly ignored), as well as prior court orders (which were deliberately and wilfully disobeyed), the owners continued to sell beer from within their unit to outside parties. The court found that this was not only illegal, but also breached the corporation’s declaration and rules. Moreover, it enabled “disorderly and often lawless activities” and some violence that took place in the common areas near the unit. The court ordered the owners to sell their unit, and also barred them from the complex, seeing it as the only way to ensure that the owners’ offending conduct would stop.
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.
Toronto lawyer Martin Rumack’s practice areas include real estate law, corporate and commercial law, wills, estates, powers of attorney, family law and civil litigation. He is co-author of Legal Responsibilities of Real Estate Agents, 4th Edition, available at the TREB bookstore and at LexisNexis. Visit Martin Rumack’s website.
