There’s been quite a bit of talk about what condo boards can and cannot do in the wake of a recent court decision regarding Airbnb.
There’s been quite a bit of talk about what condo boards can and cannot do in the wake of a recent court decision regarding Airbnb. Considering how pervasive condominiums are in our modern society, it’s a wonder that there’s so much uncertainty about the rules and laws that govern these living spaces. Any person who has lived in a condo (or even if you haven’t) has heard words like “condo board” and definitely words like “condo fees.” Beyond that though, navigating what can and can’t happen within a condominium community can be complicated.
We’ve made a list of the top 5 things your condo board can do.
However, before we jump into that list, it’s very important to understand what condominiums really are. You may be surprised to know that the term condominium does not actually refer to a building or even a suite inside a particular type of building. Condominiums are actually a form of ownership. It is an abstract legal concept, and the word does not technically refer to physical structures. Perhaps Justice Cromwell said it best in a Nova Scotia Court of Appeal case in 2001: “The term condominium refers to a system of ownership and administration of property with three main features. A portion of the property is divided into individually owned units, the [remainder] of the property is owned in common by all the individual owners… a vehicle for managing the property, known as the condominium corporation, is established. The condominium may be seen, therefore, as a vehicle for holding land which combines the advantages of individual ownership with those of multi-unit development. In a sense, the unit owners make up a democratic society in which each has many of the rights associated with sole ownership of real property, but in which, having regard to their co-ownership with the others, some of those rights are subordinated to the will of the majority.”
Regarding the rules and obligations that come along with living in a condo, Justice Blair put it simply in an Ontario Court of Appeal case in 2012: “People join condominium corporations voluntarily on the basis that they agree to share certain collective property and to abide by a set of rules and obligations that protect the collectivity.”
So now that you understand that condominiums must include rules and governing-bodies as a matter of legal necessity, what are some of those rules? What can do condo boards do in terms of pets? Can an owner ever be kicked out of a building for any reason? What happens when you refuse to pay your condo fees? Condominium corporations in Ontario must abide by the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), which is a fairly lengthy set of laws passed by the provincial government to govern this complex type of land ownership.
So, here are just 5 things your condo board can do:
1) Sell Your Unit
Well that escalated quickly. This seems like a fairly serious interference of an owner’s rights. After all, a big reason people buy their own homes is to enjoy the freedom and privileges of being an owner. It would therefore seem extreme for an owner to then be dispossessed of the land that he or she lawfully purchased. However, there are circumstances where the condominium corporation can force you to sell your unit, whether you agree with their decision or not. For example, if you have unpaid condo fees, the corporation can register a certificate of lien against your unit. This lien can then be enforced in court and, if necessary, your unit will be sold.
What if condo fees become too expensive? Can they be negotiated? The short answer is no. Intermittent increases in condo fees are normal and are a fact of life when living in a condo. The fees paid by owners go towards paying the building’s maintenance, the right to use the amenities, and to ensure a healthy reserve fund. The condo’s reserve fund is like having an emergency savings account of the condominium corporation (because, well, bad things happen). You cannot opt out of your right to use the amenities to reduce your condo fees either. The Act also does not prescribe any particular caps on condo fees. The condominium corporation is; however, required to periodically conduct a “reserve fund study.” The results of these studies can be used to set increases in condo fees. If you find that you can no longer afford the fees, you should think about moving to a more affordable living-space while you still can. Again, failure to pay your condo fees can result in a forced sale of your unit.
There are other situations other than unpaid condo fees where a condo corporation may also take an owner to Court and obtain an order to sell the owner’s unit. For example, in the case of York Condominium Corporation No. 82 v. Singh, 2013 ONSC 2066, a unit owner’s suite was order to be sold after the owner repeatedly disobeyed Court orders prohibiting her from selling alcohol from her unit.
Owners can at least have the peace of mind in knowing that forced sales involve Court proceedings, and you can hire a lawyer to represent your interests in such proceedings. The general environment in Court during such situations is to favour the owner’s right to continue owning their property. After all, property rights are central to our system of law, and nowhere is that more underscored than in matters of real estate ownership.
2) Ban Pets
This one is a bit tricky. Many condos have rules about pets, and some condos even ban them outright. So far, there have been decisions by judges in Ontario that have decided these cases with somewhat different results. However, the general rule of thumb is that condominium corporations can pass declarations and by-laws that restrict or ban pets, and owners are required to follow them (most of the time).
The power to make such rules is somewhat surprising given that such powers are not even granted to landlords in their dealings with tenants. The Residential Tenancies Act states that no-pet policies in rental agreements are void and unenforceable. However, since the relationship between condo owners and condo boards is not that of a “landlord and tenant,” those sets of laws don’t apply.
There are exceptions. For example, if you rely upon your pet due to a disability, such as a seeing eye dog, then the rights granted to you pursuant to Ontario’s Human Rights Code will take priority over the condominium’s right to enforce such rules against you. So such animals cannot be prohibited.
Interestingly, there have also been situations where owners have successfully challenged no-pet policies even when no disability was involved. Keep in mind that these are exceptions, and not the norm. In one case in Toronto, the condominium corporation had an absolute prohibition against pets, but a Judge decided that the prohibition was unenforceable for some very interesting reasons. First, the condo corporation has failed to actually enforce the policy for about ten years (even though they knew a particular cat was there). Permission to enforce the no-pet policy in Court was denied because of the length of time the cat had been allowed to remain, and the pet-owner’s attachment to the cat, as well as the age of the cat.
Here’s another possible situation. Let’s say your condominium is pet-friendly; however, your neighbor happens to have a pet that is somewhat of a nuisance. Let’s say this animal has bitten people, or makes noise all night, or the owner never cleans up after the animal. What happens in those cases? Well, the same power given to the condo corporation to ban pets also allows the condo corporation to regulate them. So, in theory, your condo board could pass a rule that permits pets in the building, on the condition that the pets do not cause a nuisance or safety-risk to any other residents. And yes, your pet may be removed from the building permanently if you are found in violation of a lawful rule in the condo’s Declaration.
3) Regulate Your Décor and Renovations
This one still surprises a lot of people. Even after spending tens of thousands of dollars on a down-payment and sacrificing a large chunk of your household income on mortgage payments and condo fees, the condo corporation can still come down on you for picking the wrong coloured shades or blinds. Strangely enough, the law permits the condo board to draft the condo’s declaration, by-laws and rules to restrict and control even these cosmetic features of your immediate living-space.
Controlling the colour of each unit’s blinds serves to protect the buildings overall exterior appearance. Naturally, appearances affect real estate value. Regulating appearances, therefore, protects the financial interests of the entire community of owners. Given that the condo board exists, in theory, to safeguard the interests of the collective community of owners, this would seem to be a justifiable reason for having this power.
But what about home renovations? Let’s say you’re happy with the condo’s choice of colour for your shades, but you want to tear out the old ugly tiles in your kitchen floor and change the cabinets. You probably guessed it, there’s a very good chance that your condominium corporation’s declaration, by-laws and rules require all owners to seek permission before undertaking any renovations inside their unit, and certainly not upon any common elements (by the way, balconies are often deemed to be common elements). In practice, many owners completely disregard these rules. Many get away with it too. Keep in mind that breaking the rules is often not worth the risk of the new shiny cabinets. If your condo board decides to take action regarding an unauthorized renovation, you may well be finding yourself receiving a letter from the building solicitor, followed by court proceedings which could end up costing you a lot of money in legal fees and even undoing your renovations!
Okay, so we’ve got a bunch of rules about shades, renovations, items you shouldn’t have out on your balcony, etc. But what happens when these rules are broken? Can the condo board issue you a fine? Well, at least there’s some good news in that. They cannot fine you. However, condo boards are no strangers to the Courtroom, and they can just as well waste your money by taking you to Court and forcing you to pay for their lawyer’s fees if they are successful against you. They could seek a Judge’s order forcing you to stop doing some activity, or have you face a forced sale or contempt-of-court motion if you disobey the Court order.
2) Limit Occupancy and Access to Amenities
If you weren’t entirely convinced that condominium corporations have broad legal authority regarding what happens on its premises, keep reading. Section 56(1)(k) of the Act states that the board may make by-laws to restrict the use and enjoyment that persons other than occupants of the units may make of the common elements. In other words, if you’re planning a huge party with all of your friends and family in the condo’s swimming pool, you might want to think again. Such regulations even extend to the interior of the owner’s unit. Courts in Ontario have upheld the rights of condominium corporations to restrict occupancy in units to “single-family” dwellings. But what is a single family? Generally speaking, the condo board will opt to make rules that pursuant to local zoning by-laws or the Ontario Building Code, which permits two persons per sleeping room in a dwelling unit.
5) Enter Your Suite
This is rare, but it should be an obvious one. If there is an emergency, like a fire, management may be able to enter a unit immediately or without notice. The rules that govern entry into an owner’s unit by agent of the condominium corporation will be set out in the condominium’s declaration, by-laws and rules. Normally, a representative of a corporation may enter a unit to carry out the “objects and duties” of the corporation, like inspecting the smoke detectors or heating and cooling system, as long as he or she gives the unit owner and resident reasonable notice and enters at a reasonable time.
So there you have it.
There are 5 things that your condo board can do. Keep in mind that although it may seem that condominium corporations do have significant power, owners still have rights. For example, as an owner, you can vote at owners’ meetings, elect board members, review corporation records (as long as your request is put in writing and gives reasonable notice), request a meeting of owners and request that an issue be added to a meeting agenda, get a Court order to make the corporation carry out a duty required under the Condominium Act, or remove a director from the board with a majority of votes. If you don’t like how your local condominium community is being run, consider running for membership in the board. If you have an isolated dispute with your condominium corporation, you can always speak to a lawyer to explore your rights.