Trespassing is an issue many condominiums have to address at some point in time. Maybe the condominium is located beside a local hangout, like a school, a mall, or a park. Maybe the common elements include features that attract people to the property, like railings for skateboarding or a large green space for tossing a football around. Whatever the reason it is likely that your condominium will have uninvited people on the property at some point.
A trespasser is a person who, without legal right, enters another’s property when entry is prohibited, engages in a prohibited activity on the property, or does not leave immediately when asked. Section 2 of the Trespass to Property Act makes trespassing an offence punishable by a fine of not more than $2,000.00.
Q: Who can demand a person leave property?
A: The Trespass to Property Act states that an “occupier” has the right to demand that a person leave the property. An occupier includes:
- a person who is in possession of property (i.e. unit owners for the units); and
- a person who has responsibility for and control over the property (i.e board for the common elements).
Q: Why should a board care that people are trespassing?
The condominium has an obligation to ensure that people entering upon the property (and their belongings) are “reasonably safe”: the Occupier’s Liability Act. In addition, there are other legal principles that could make the condominium responsible for any damages suffered by a person using the property, such as negligence. In short, liability is a concern with trespassers.
In addition to liability concerns, the board has an obligation to manage the property and assets of the condominium. The trespassers may be causing damage to the common elements or units, creating an unsafe or dangerous situation, or interfering with the use and enjoyment of the property by the owners .
Q: What can be done about trespassers?
The board should take a proactive approach. Physical boundaries, such as fences or landscaping, can create a border and keep unwanted people from coming onto the property. The board may also want to consider posting signs or notices that prohibit certain conduct (i.e. skateboarding, soliciting). A general “no trespassing” sign may be useful in some instances. If someone ignores the signs and refuses to leave when asked the police (or local by-law enforcement office, if one exists) could be called to remove the person.
If the trespasser is known to the board or manager a letter may be sent to notify him or her that using the property is prohibited. If the person continues to use the property despite the letter and requests the board or manager could call the police or by-law to remove the person the next time they come onto the property.
Trespassing can be a tricky situation to address in some condominiums. If you have any questions about your options you should speak with your manager and/or lawyer.