Condo Reporter - Timely Commentaries on the Latest Developments in Condominium Law in Ontario

We expect that some residents were shocked to read a recent article in the Toronto Star that reported that one of the residents in their condominium was operating a dominatrix dungeon from her unit. 

While some residents may fear that property values will decline if the condominium becomes stigmatized because of those activities, there are also valid safety/security concerns (loitering, noise disturbances, etc.) with strangers coming and going from the property, particularly during the late night hours.  (According to the Toronto Star article the dominatrix said that she was getting as many as 30 requests a week for her services.) 

While the operation of a dominatrix dungeon is not an illegal activity per se, operating such a business from a residential unit in most cases will be a violation of the City's zoning by-laws. Plus many residents would not be pleased to find that their neighbour across the hall is operating a dominatrix dungeon from the unit. What can a condominium corporation do to prevent or stop the operation of undesirable activities?

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As the baby boomer population ages and more individuals look to downsize, these individuals need to determine what to do with furnishings and possessions accumulated over the years. While their former four-bedroom home in the suburbs had space suitable for storing items, space is at a premium in their new urban residence, a trendy mid-town condo. Consequently, it is not possible to accommodate all of the boxes storing comic books, photo albums and seasonal items in their new condominium unit.

Faced with this conundrum, many condominium residents are purchasing on-site storage locker units in their condominium building or renting off-site storage lockers. This practice, although not a new phenomenon, recently attracted media coverage. As opposed to renting an off-site storage locker, purchasing an on-site storage locker has the advantages of enabling condo dwellers to keep additional possessions on-site despite downsizing and provides an opportunity to own an additional asset (if the locker is an actual unit and not an exclusive use common element area) that could potentially be sold for a profit (subject to provisions in the condominium's declaration which may limit to whom a locker unit can be transferred).

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Have you had a good look at your by-laws and rules lately?

Many condo corporations still have in place the by-laws and rules that the developer put in place when the condominium was registered. Developer by-laws and rules tend to be “one-size-fits-all” – but each condominium community is unique. The uniqueness of each community is a reflection of the make-up of the residents, the physical structure and amenities of the condo development and  its location. Other corporations may have replaced the developer documents, but the replacement by-laws and rules passed years ago may now be outdated.  

Developer documents and old by-laws and rules are often missing specific provisions that can be very useful when dealing with some problems such as overcrowding, payment of deductibles under the corporation’s insurance policy, harassment, hoarding, for example.

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In the vast majority of instances, it is important for condominium corporations to actively enforce their declarations, by-laws and rules. In fact, section 17(3) of the Condominium Act, 1998 (the “Act”), imposes an obligation on condominium corporations to take all reasonable steps to ensure compliance. However, there are certain instances when condominium corporations should exercise discretion and obtain guidance from legal counsel before seeking to enforce.  An example of such a predicament is the placement of a mezuzah on a unit’s exterior doorframe.  This issue has previously received media coverage in the United States and has recently resurfaced. 

Common practice amongst most members of the Jewish faith is to affix a small ritual item on their doorposts known as a mezuzah, which contains biblical verses written on parchment. This ritual is regarded as a religious obligation and canonized as such in the Jewish Bible (the Torah).  A potential problem can arise when a condominium corporation has a rule prohibiting items placed or affixed outside of units. On the one hand, section 58 of the Act requires rules to be reasonable. Rationales for this rule can include stylistic consistency and integrity, maintaining property values, insurance requirements, or safety concerns.

The mezuzah controversy rose to prominence in Chicago in 2001, when the condominium association at the 378-unit Shoreline Towers adopted a rule banning “mats, boots, shoes, carts or objects of any sort… outside unit entrance doors”.  The Board determined that this rule must be enforced in an absolute manner, and accordingly, Shoreline Towers management removed the hallway mezuzot. 

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Section 132 of the Condominium Act sets out the procedure for mediating and arbitrating condominium disputes between an owner and a condominium corporation. Section 132(4) provides, in particular, that every declaration shall be deemed to contain a provision that the corporation and the owners agree to submit a disagreement between the parties with respect to the declaration, by-laws or rules to mediation and arbitration.

There has traditionally been some uncertainty in the law as to when a condominium corporation can proceed directly to court for a compliance order, and by-pass mediation and arbitration.

The recent case of Geeta Channa v. Carleton Condominium Corporation No. 429 has helped clarify this issue.

In this case, the owner, Ms. Channa, made an unauthorized modification and alteration to the common elements of the condominium by making a hole in the roof for the installation of an HVAC system. The condominium corporation incurred costs with respect to the unauthorized alteration, and subsequently commenced a compliance application (a separate application was commenced by the owner with respect to a Notice of Sale that was delivered by the Corporation). The Corporation sought, among other things, the recovery of charges relating to the unauthorized installation, and an Order that the owner enter into a section 98 agreement with the Corporation. Pursuant to Section 98, the agreement was to have been entered into prior to any work being performed on the common elements. 

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In the latest issue of Condo Voice Magazine, Denise Lash and Barbara Holmes discuss the potential liabilities that condominium corporations face in relation to swimming pools and hot tubs in condominiums. 

The Condominium Act provides that for the purposes of occupiers' liability, the condominium corporation is the occupier of the common elements and therefore is bound by the Occupiers Liability Act with respect to the common elements.

Denise and Barbara recommend steps that condominium corporations can take to minimize risks.  In addition, they also provide suggestions for condominium corporations to improve their current rules.

Condominium Swimming Pools: Potential Liability for Condominium Corporations was published in the Winter edition of the quarterly print publication.

Although condominium ownership allows one to own a portion of a larger piece of property, the unit owner does not have the same freedoms with respect to that property as would be had in the case of a detached, freehold residential dwelling. The condominium unit owner is required to abide by the rules of the corporation that have been created for the purpose of preventing unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation. While enjoying one's own unit, such enjoyment is not to be at the expense of interfering with the use and enjoyment of the other owners in the condominium community. 

While many condominium corporations allow pets in the condominium, owners must comply with the rules regarding pets. If a unit owner breaches the rules, the unit owner runs the risk that the pet will be declared a nuisance animal and be required to be permanently removed from the property. This is what happened in the case of York Condominium Corporation No. 26 and Ramadani.

The unit owner permitted her dog to go out on the 2nd-floor balcony where it barked at passers-by and urinated, with the result that the urine flowed over onto the patio of the unit immediately below.

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The courts have once again confirmed that restrictions in a condominium corporation's documents, which state that all units must be occupied by a single family, thus excluding unrelated roomers and/or boarders, are valid restrictions. 

In the case of Nipissing Condominium Corporation No. 4 and Kilfoyl et al,  (which was subsequently confirmed by the Court of Appeal) the corporation's declaration restricted the use of the condominium to a "one-family residence". The declaration went on to further define "one-family residence" as "a unit occupied or intended to be occupied as a residence by one family alone, including guests and containing one kitchen, provided that no roomers or boarders are allowed". "Family" was defined in the declaration as "a social unit consisting of parent(s) and their children, whether natural or adopted and includes other relatives if living with the primary group."  

When the corporation sought to enforce that provision against owners who had leased their unit to a number of unrelated students, the owners challenged the provision as being contrary to the Human Rights Code. The Human Rights Code provides that "every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance". The Court determined that the declaration did not infringe on any of the grounds listed in the Human Rights Code, including family status, and that the occupancy of the unit by unrelated roomers and/or boarders was in contravention of the declaration. 

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The radio stations are playing Christmas music and the stores are decked out for the holidays. Now that the holiday season is upon us, condo owners should be checking their condominium documents before putting holiday decorations on the outside of their units. The outside of the entrance door to the units, the balconies and the exterior windows, verandas and front lawns of townhouse units generally do not form part of the unit, but are part of the common elements of the condominium. Most condominium corporations have rules in place that either prohibit or restrict owners from affixing any type of decoration or installation on the common elements. Rules relating to holiday decorations may contain provisions such as the following:

• A prohibition on affixing wreaths and other decorations on the outside of unit doors in high-rise buildings. These wreaths are frequently made with materials that would fill the condo corridor with toxic gases in the event of a fire.
• All outdoor lighting must be CSA-approved lighting that is specifically designated for outdoor use.
• The period during which holiday decorations can be put up and the date by which they are to be taken down. Nobody wants Christmas decorations up at Valentine's Day or even later .

The rules of some high-rise condominiums may also prohibit the use of real Christmas trees. Not only can a dried out Christmas tree pose a fire hazard, but the common elements can be littered with needles as the tree is taken in and especially when taken out of the building. 

We suggest that condo corporations be proactive and communicate with residents at the beginning of the holiday season to remind them about the rules relating to holiday decorations.

In the U.S. steps have been taken recently by some condominiums and homeowner associations to ban sex offenders from their communities by amending their Declarations. Their motivation in doing so is to protect children but also to ensure that the market value of their homes would not be impacted by the presence of a sex offender. 

In Ontario, many declarations impose prohibitions on dangerous pets but to date, prohibition on persons such as dangerous offenders or other individuals with criminal backgrounds are not part of condominium declarations, bylaws or rules. 

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Denise Lash has penned another article for Legal Eye, her regular column in Condominia magazine. “Good Neighbour Rules” discusses the importance for condominium corporations to set realistic rules and guidelines for outdoor spaces for when condo residents move their socializing to the grounds of their building:

Most types of these types of (outdoor) spaces, such as balconies and patios, are legally defined as exclusive-use common elements. This means that although these areas are only used by the unit owners ( and not other unit owners), it is still a common element and is governed by the rules of the condominium corporation.

You can read the article on Page 22 of the digital magazine.

Bedbugs or dog sniffer. Which would you prefer in your condo?  For one condo owner, having a dog which sniffs out bed bugs, was too much for him to handle in his no dog building, even though Scout, a Black Labrador-Border Collie mix was trained and used for the specific purpose of getting rid of bedbugs in his condominium building. Christopher Parker sued the Association and its board for permitting Scout to reside with one board member, citing that the board should have carried out a vote of the owners to propose a change to the rules which currently prohibit dogs. 

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A special thank you to Ronak Shah (student-at-law) for co-authoring this article.

The Ontario Human Rights Code (the “Code”) requires condominium corporations to provide an equal opportunity to access housing and its intended benefits without discrimination on any of the grounds protected by the Code, including disability. The obligation extends to condominium boards, management, staff, owners and residents.

Time after time, human rights commissions and tribunals across Canada have affirmed that condominiums have a general duty to accommodate disabled owners and residents to the point of undue hardship. Depending on the circumstances, appropriate measures to accommodate persons with disabilities may include providing wheelchair ramps and accessible parking on the property, installing wide lobby doors that open automatically, or adding Braille to elevator buttons.

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Robin Sears, senior partner at the Toronto public affairs firm Navigator Ltd. and a former NDP strategist, feels that it is ones democratic right to display campaign signs, regardless of whether there are any restrictions in a condominium's Declaration or rules.  In, last Thursday's Toronto Star article, Sears states "Sadly, some landlords and some condo associations still use a combination of municipal bylaws and community rules to frustrate local campaigns."

We have seen this issue being raised before when owners wish to erect not just signage but flags of different nationalities, including the Canadian Flag.  Many Canadians are now feeling that it is more important then ever to support their country in light of today’s political climate and showing support, often means displaying flags, banners or other such “patriotic” symbols.

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It is important for board members and managers to have an understanding of various cultural and religious beliefs of the residents in their communities. Interesting issues will sometimes crop up which may not appear to be relevant to certain individuals but to others, can have a detrimental and severe impact on their lives including the use or marketability of their condominium units.

Just look at what happened in Vancouver, when some angry Asian residents in a high-end condominium learned that a hospice was planned for the building next door to theirs.  Those condo residents believe that Death is the Yin and Live is the Yang which means that bringing the Yin and Yang close to each other (the hospice and their condominium building), would bring bad luck. Their concern was that this could result in the failure of their business, family breakups, loss of money, sickness and even death. 

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The other day I received an email from a land surveyor who commented on the confusing nature of unit boundaries and thought a blog on this topic would be worthwhile.

 The issue is that condo purchasers (whether buying a residential, retail or commercial units), will normally look at the marketing drawings when purchasing a unit which are then often incorporated into the Agreement of Purchase and Sale as a schedule. But what many of those purchasers don't recognize, is that the "legal" boundaries of the unit are often not shown on those drawings and can only be determined by reviewing the wording in the Declaration and in particular, Schedule "C" and the Description.

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A recent article in the Toronto Sun reported on a condo owner who was asked to remove a Christmas wreath from the door to his unit, as this was a breach of the condo corporation's rules.  At a casual glance hanging a wreath on the door seems harmless.  However, in response to the article, Fred Collins, Chief Instructor at the Ontario Fire College wrote to the Sun explaining that in the event of a fire, one wreath could within seconds fill the condo corridor with toxic gases sufficient to kill all the residents of the floor who would use that corridor as a means of escape.  Mr. Collins stated:  "The prohibition of such decorations or door and hall hangings has its roots in the Ontario Fire Code and is there to try to protect the lives of the residents of those buildings.  Such a prohibition on decorations in the halls of apartment and condo buildings is not a vendetta against any resident."  Condo boards and managers should be aware of these safety concerns in the event that any residents try to pressure the condo corporation to amend its rules to permit door decorations.

On September 24th, 2010, a fire occurred in an apartment building at 200 Wellesley Street East in Toronto in a suite that was known to property management as a hoarder's unit.  Supposedly steps had been taken to deal with the suite, but obviously not done soon enough.  The fire occurred and luckily did not end up with the loss of any lives but displaced 1200 people from their homes.

Condominium Corporations have the same challenges as apartment building owners and should be viewing this latest incident as a warning sign that hoarding should be taken very seriously and when discovered it is important to move quickly.

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