The Condominium Authority Tribunal (CAT) has released a few decisions related to parking issues in condominiums in the last six months. We summarized one of the previous decisions in post last month. The CAT has released another one this month that is interesting in what is says about rule enforcement, delays in enforcing by condominiums, and the available remedies to condominiums.
In a recent case the tenant was parking a motorcycle beside the parking space where he parked his car. The space where he parked the motorcycle was not a parking space. The condominium informed him that he was prohibited from parking in the area as it was contrary to the rules, but the tenant refused to move the motorcycle. The condominium started a case with the CAT. The tenant did not participate, but the landlord did participate.
The CAT first reviewed the rules to determine if there was a violation, and if so, if there were any reasons it should not be enforced in the case.
The condominium had a rule that prohibited owners from placing, locating, keeping, installing, or maintaining any item on the common elemens. The rule authorized the condominium to remove any item left on the common elements by an owner and store the items at the owner’s expense. The CAT determined that the tenant violated the rules by parking the motorcycle on the common elements. The landlord did not dispute the tenant was violating the rules by parking his motorcycle in the area next to his car.
The tenant argued that parking his motorcycle in the spot did not violate a fire safety rule, contravene the by-laws, or impede access to the property, so he should be able to continue parking the motorcycle in the space. The landlord supported the tenant’s position. The condominium conceded that it was not a fire safety issue and did not impede access. The condominium argued the tenant parking his motorcycle in the space was a violation of the rules.
The tenant and landlord also argued that the tenant should be able to park in the space as he had been doing so for many years. They argued that the rule was unreasonable and should not be enforced. They also argued that the condominium’s failure to enforce the rule for many years prevented it from doing so now. The CAT disagreed. The rule was not, on its face, unreasonable:
The fact that [the tenant’s] use of the space is not interfering with any critical infrastructure is not persuasive evidence that a prohibition of his use of that space is unreasonable. The Rule is not aimed at that corner of the parking garage or at him personally. The Rule appears to fall within a range of what is reasonable. I conclude that the Rule is not unreasonable.
The CAT found that there was some unexplained delay in enforcing the rule by the previous manager, but there was no evidence the condominium acquiesced in the tenant’s parking arrangements or led him to believe that he was parking in a permitted space. The CAT said “The lapse in enforcing the Rules might require some additional notice of the change in policy but this was provided by the numerous notices during the fall of 2020.”
The condominium had several parking spaces for rent for motorcycles, but all spaces were being used at the time of the hearing so the only option was for the tenant to remove the motorcycle from the parking garage. The CAT gave the tenant 21 days to remove the motorcycle from its location. If the tenant fails to do so, the condominium is entitled to take any lawful action available to it to enforce its rules against the landlord and tenant and it will be entitled to charge those expenses to the owner or tenant, or both.