This year’s theme is already emerging…another forced sale.

In the past an order forcing a unit owner to sell his or her unit was seen as a draconian measure to be used only in the most outrageous situations, such as those involving multiple physical assaults on the other owners or property manager. In the past year or two, however, several condominiums have been successful in obtaining such orders without the same level of nuisance behaviour, criminal activity or property damage that was present in the previous cases.

The most recent case is Carleton Condominium Corporation No. 348 v. Chevalier (2014) SCJ. The accusations against Mr. Chevalier included that he removed salt and grit that was placed to prevent slips and falls in the winter; he failed to remove a derelict vehicle from the premises (it apparently did not have a steering wheel or seats!); he used profanity and verbally abused contractors, property managers and directors; and he modified the common elements without approval and attempted to prevent the condominium from restoring the common elements. At a previous hearing the Public Guardian and Trustee was appointed as litigation guardian for the owner as there were concerns about his ability to represent himself due to a possible mental illness. 

The condominium had obtained a previous court order requiring the owner and the occupant to comply with the Act, declaration, by-laws and rules and refrain from modifying the common elements. The day after the order was made the occupant installed a fence on the property, contrary to the court order. A second order was made requiring the occupant to vacant the unit and refrain from living in any other unit or visiting the property. A contempt motion was brought after the occupant was seen on the property again. The occupant struck a contractor with a crow bar. when the condominium’s agents attempted to remove the fence again. The police were reluctant to intervene as the owner had transferred his interest in the unit to the occupant. Another court order was made declaring the transfer void, authorizing the police to remove the occupant, and further costs to the condominium. Despite the previous court orders, the occupant continued to visit the owner at the condominium.

The judge found that the owner and occupant “have no intention of complying with previous court orders”. The actions of the owner and occupant were found to have “presented a series of health and safety issues for other residents, management, visitors and contractors” and it was apparent that the owner “suffers from a mental illness.” As a result, the judge evicted the owner from the unit.

Although there was at least one assault in this case (with the crow bar), this case does not have multiple assaults or serious property damage as was commonly found in older cases. Has the threshold for an order for a forced sale of a unit decreased in the past year or two? Based on the newer cases, it appears the answer is yes. It also appears that there are now two separate ways to get an order for a forced sale: 1) establish that the owner has committed multiple serious criminal acts (i.e. assaults, harassment); or, 2) establish that the owner has disregarded previous court orders and refuses to follow the Act, declaration, by-laws or rules.

 

d