Visitor Parking Wars Rage On

grayscale photo of parking signage
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There have been several parking cases at the CAT since its jurisdiction was originally expanded. In many cases the owners denied that they were improperly parking on the property and argued the rule was unenforceable. In some cases the CAT members felt there was insufficient evidence to support the condominium’s allegations against the owners. In other cases the conduct was not contrary to the rules.

In a recent case a condominium argued that three owners were parking in the visitor parking spaces, which was prohibited by the rules. The owners admitted that they were parking in the spots. They argued they had been doing so for many years without incident, so they should be entitled to continue doing so. They argued the rules were inconsistently enforced and no longer served their condominium community.

The CAT member reviewed the governing documents, including Rule 2.18 that stated the parking lots at the front and rear of the building were “reserved for visitors and guests only”. The rule stated that the owners must use the designated spots in the underground parking garage. The owners parked in visitor spaces because their vehicles were too large to fit in the underground parking garage.

The owners argued that they should be able to continue to parking in the spots because they had been doing so for several years. They also argued that they were being targeted for enforcement while others were violating the rules. They also argued the rule was unreasonable as it had not changed in 30 years. In response, the condominium stated it was prompted to enforce the rules after receiving several complaints about misuse of the visitor parking. The condominium admitted that the rules were not enforced in the past, but the current board had given owners ample notice of their intention to enforce the rules. The CAT member was not persuaded that the condominium’s enforcement was unfair.

The CAT member also disagreed with the owners regarding the reasonableness of the rule. While large vehicles may be more popular now than when the rule was created 30 years ago, that did not render the rule unreasonable. The owners ought to have investigated the designated parking space for their unit before purchasing it. “If they owned or chose to purchase a vehicle that did not fit into the spot, this was their choice”.

Lastly, the owners argued that the condominium had acted improperly in not accepting any of their proposed solutions. The CAT member disagreed. “While I commend the parties for their attempts to resolve this matter through discussion and negotiation, the fact that a resolution was not reached is not evidence of wrongdoing by either party.”

The CAT member gave the owners 90 days to remove their vehicles from the visitor parking lots. After the 90 days the condominium could continue its efforts for enforcement.

Entering a Unit for Enforcement Purposes

silhouette photo of person holding door knob

Photo by George Becker on Pexels.com

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. Continue reading

Electric Vehicle Charging Systems in Condos

electric carsThere has been a lot of talk about electric vehicles in condominiums lately, despite the fact that electric vehicles still represent less than 1% of passenger vehicles in Ontario. The Ontario government hopes to increase the number of electric vehicles on the roads and has created new legislation to make it easier for  owners and condominiums to install electric vehicle charging systems. The new regulations came into force on May 1, 2018.  Continue reading

Top Condo Lessons of 2015

As 2016 approaches I find myself reflecting on the most important news, cases, and other events from this past year. Here is my list of the most important condo lessons for 2015:

10. Limitation Periods. The limitation period for enforcing a shared facilities agreement in Ontario appears to be 10 years: Toronto Standard C.C. No. 1487 v. Market Lofts Inc. The limitation period for challenging a special assessment is 2 years and the period begins when the special assessment is levied, not when it is due:  Vasilescu et al. v. Metropolitan Toronto C.C. No. 626.

9.  Noise Issues. An owner does not have a right to absolute quiet in their unit; the other owners are entitled to make ordinary residential use of their units without fear of enforcement efforts by the condominium: Dyke v. Metropolitan Toronto C.C. No. 972. However, it can be oppressive for a condominium to ignore noise complaints, especially when its own experts indicate that there is a problem: Wu v. Peel C.C. No. 245.

8.  Scheduling Meetings. Condominiums ought to be mindful of religious holidays or special events when selecting dates or times for owners’ meetings: Kamal v. Peel C.C. No. 51 (no decision released yet).

7.  Directors’s duties. A director may be found to have breached their duties when he/she publicly opposes a decision made by the board in a way that is not in the best interests of the condominium: Ballingall et al. v. Carleton Condominium Corporation No. 111.

6. Fraud. More property mangers were charged with fraud this year. Condominiums in Hamilton and Burlington were hit hardest. All directors and owners should be diligent when reviewing financial records of the condominium; hire only trustworthy managers; and ask the auditor and bank reps for tips to avoid fraud.

5. Bed bugs are dangerous condition. An owner who fails to address a bed bug infestation (or hoarding) can be found to have breached their duties under the Act and declaration and the owner may be responsible for all of the condominium’s costs: Carleton C.C. No. 25 v. Eagan.

4.  Grandfathering. A clause in a new rule may grandfather existing violations, but it must be reasonable (10 years was not in this case) and consistent with the declaration: Ballingall et al. v. Carleton Condominium Corporation No. 111.

3.  Disabilities must be proven. An owner cannot make a bare assertion of pain or anxiety to substantiate a disability claim and a request for accommodation; the condominium is entitled to request evidence of the disability, a description of the needs of the disability, and an explanation of how the requested accommodation meets those needs: Simcoe C.C. No. 89 v. Dominelli.

2.  Court Costs. The courts continued to express concern for claims by condominiums trying to recover excessive legal costs from owners for enforcement matters. See here and here. But Owners should be careful not to make claims that they can’t substantiate or they may be responsible for the large legal bills of their condominium.

And not surprisingly, the top news event of 2015 is…

1.   The passage of the Protecting Condominium Owners Act, 2015 (Bill 106). In April the Ontario government confirmed that the Condominium Act, 1998 would be amended in 2015. In May the proposed amendments to the Act were revealed. In December the Bill received royal assent. It is not yet in force as the government needs time to create the regulations and organizational structure (i.e. tribunal), but many estimates say it will be in force later in 2016 or early 2017.

Dog Restrictions and Disabilities

I am regularly asked by clients to assist them with enforcement of dog restrictions (i.e. weight limits) or complete prohibitions in a condominium’s documents. Sometimes an owner will claim that he or she needs the dog because of a disability. The mere mention of the word (disability) immediately increases the anxiety felt by the board and manager. It seems many owners are aware of this anxiety-inducing affect and use the word without regard for its actual legal meaning. There was a recent case where an owner did just that, but the condominium refused to back down without adequate evidence of her disability.

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Single Family Use

Most declarations for residential condominiums restrict the occupation and use of the units to residential use. Some go further and restrict the occupation and use of the units to “single family” or “one family” residences. The typical language used is something like:

Each unit shall be occupied and used only as a residence for a single family and for no other purpose.

These clauses have been contained within declarations since the 1970s, maybe even earlier in other jurisdictions. Most of you probably have similar clauses in your declarations, unless you are a commercial, industrial, or resort condominium, or one designed for student-housing.

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