One of the most popular posts of all time on our blog is “Making Entry to a Unit” from 2014. It described the requirements set out in section 19 of the Act:
Right of entry
19 On giving reasonable notice, the corporation or a person authorized by the corporation may enter a unit or a part of the common elements of which an owner has exclusive use at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation. 1998, c. 19, s. 19.
One of the areas lawyers argued about was whether the condominium could use section 19 of the Act to make entry to inspect a unit for enforcement purposes (i.e. to confirm the presence of a dog, too many occupants, noise). My view was always that section 19 says the condominium can make entry to a unit to perform its objects and duties and exercise its powers. Since section 17(3) of the Act states that the condominium has a duty to ensure the owners (and others) comply with the Act, declaration, by-laws and rules, the condominium should be able to use s.19 to make entry to a unit to inspect for compliance with the Act, declaration, by-laws or rules.
A recent decision confirms condominiums can make entry to a unit to inspect for compliance with the Act, declaration, by-laws and rules. Section 19 does not limit the condominium’s right to make entry to a unit to repair or maintenance issues.
In Metropolitan Toronto Condominium Corporation No. 1328 v. 2145401 Ontario Inc. (2019) a unit owner refused to allow the condominium to make entry to the unit. The dispute arose because of noise complaints made by the neighbour below the respondent’s unit. There was also a dispute about a lien registered against the unit for alleged water damage caused to the unit below and a Small Claims Court claim by the owner. The condominium sent two letters informing the owner that it intended to inspect the unit for compliance. The owner denied entry and even issued a trespass notice purporting to prohibit the condominium from entering the unit.
The court reviewed the relevant provisions of the Act (sections 17, 19, 92, 119, 134) and the condominium’s declaration. The court found in favour of the condominium. At paragraphs 30 and 31 the court stated:
The owner also alleged that the condominium brought the application in bad faith and to pressure him into settling his Small Claims Court claim. The court disagreed. There was no evidence of bad faith on the part of the directors.
The owner also argued that the matter required mediation by section 132 of the Act or that the condominium was out of time to pursue the matter due to the condominium’s delay. The court disagreed. Mediation was not required because the dispute related to the duties, obligations, rights, or powers of the condominium to make entry to the unit in connection with its efforts to seek compliance with the Act. The application was not out of time as the allegations against the owner included ongoing violations of the Act and there were issues related to compliance with the Act itself (not only the declaration, by-laws and rules).
So, what does this mean? The court order permits the condominium to make entry to the unit to inspect and investigate the noise complaints made by another resident. The court order overrides the trespass notice issued by the owner and the owner must cooperate with the condominium to permit entry to the unit. The condominium must provide at least 48 hours’ notice and the inspection must take place on a weekday between 9 a.m. and 5 p.m. (unless otherwise agreed upon). The judge has not released a decision on the costs.
Tip for any owners reading this: you should seek legal advice before denying your condominium the right to make entry to your unit. It could cost you.