There was recently an interesting decision by the Superior Court of Justice regarding the enforcement of two sets of restrictive covenants in a common elements condominium. A restrictive covenant is a legal obligation registered on title to land and runs with title (meaning it binds future owners). A restrictive covenant prohibits certain conduct, such as installing a fence, affixing decorations, or permitting a certain number of persons to reside at the property.
The condominium commenced an application against the owners of one of the parcels of tied land for compliance with a restrictive covenant, which prohibited the owners from installing any fence other than a four-foot wrought iron fence. The owners installed a seven-foot high wooden fence. The owners argued that the restrictive covenants registered in 2006, which did not prohibit the type of fence they installed, were the ones that should be enforced. The condominium suggested it was the previous restrictive covenants registered in 2004. The parties agreed that the owners were in compliance with the 2006 covenants, but not the 2004 covenants. The judge held that the condominium could only enforce the least restrictive covenants to the extent of any inconsistency between the two sets. Since the owners were in compliance with the 2006 restrictive covenants, the condominium could not demand the removal of the fence.
The case is not unique in the analysis of the restrictive covenants or the result, but the judge had several warnings for condominiums looking to enforce against owners.
The judge stated that although mediation was not required the parties ought to have considered it given the uniqueness of the facts and the “relatively tiny portion of fence” at issue. As the judge said, “the parties must co-exist and a court direction may not be the optimal tool to ensure long-term cooperation.” This statement accords with several recent cases where judges have reminded the parties of the availability of mediation to resolve their disputes instead of involving the courts. In previous cases judges have ordered costs against condominiums (or reduced the award a condominium was entitled to) because the board refused to mediate a dispute with an owner.
In addition, the judge discussed the deference that is normally afforded to a board where it is enforcing against an owner. While the judge acknowledged that deference ought to be afforded to the board, he found that the board’s actions were unreasonable in this particular case. The judge found that the fence was not a nuisance or annoyance requiring action by the board. He referred to a previous decision where the court held that minor breaches do not always require enforcement by the board. The judge suggests that court intervention was not a reasonable step based upon the facts of this case (note: section 17(3) of the Act requires the board to take all “reasonable” steps to ensure compliance).
When faced with an enforcement issue, boards should consider whether there are less intrusive means, such as mediation, for resolving disputes with owners and whether the intervention of the court is a reasonable next step. There will be cases where enforcement of a particular rule, or covenant, will not be reasonable. In some cases enforcement with letters may be reasonable, but a court application may not. The condominium’s lawyer should be able to give an opinion on the reasonableness of a proposed enforcement step to be taken against an owner or tenant.
The case citation is Oxford Common Elements Condominium Corporation No. 73 v. Greenbury  O.J. No. 1825. Read it here.Case.