People living in condos have a duty to comply with the corporation’s regulations. Condo corporations, for their part, have a duty to take all reasonable steps to ensure such compliance. But to what extent? Can tenants of a condo unit be evicted because they are causing excessive noise? Or should the corporation let neighbours sort out their own differences? An Ontario judge rules that the answer to both questions is “no”.
What is a condo corporation to do when two neighbours are at war?
Another difficult case emerged from a condominium in the Niagara region. A review of the facts reported in the case clearly indicate that two condominium neighbours could not tolerate each other. Unit 411 complained of loud noises, loud voices and profanities being screamed from unit 511. Unit 511, for its part, complained of noises and the smell of marijuana smoke coming from unit 411. Both units were occupied by tenants.
A campaign of complaints escalated between both units. Eventually, the corporation wrote to one to indicate that it would not intervene anymore “as there seems to be issues between the two of you. This is an issue between residents and it must be resolved between the two of you“. This did not help and the noise emanating from unit 511 escalated to include “loud, alarming and frequent noise by dropping what sounded like a ten pin bowling ball on the floor” and profane language being hurled at the neighbour. Some of this was witnessed by other owners/occupants.
The corporation eventually brought a compliance application seeking to permanently evict the occupants of unit 511, or alternatively seeking an order that she comply with the declaration, by-laws and rules of the corporation. The owner of the unit at the source of the noise disruption brought a counter-application to discharge a lien registered against the unit. The lien had been registered as a result of the owner’s failure to pay the legal fees incurred to deal with the noise complaints.
Interestingly, when the occupant of the other unit voluntary vacated the unit (possibly at the end of the lease), no more complaints were received about noise emanating from unit 511.
The court appeared to have no difficulty in concluding that the occupants of unit 511 violated the rules of the condominium corporation by causing excessive noise in the unit and by shouting and screaming obscenities from her balcony and in the common areas.
Still, the judge reminded the parties that eviction was a “draconian” and “extreme remedy” reserved for cases where there is an ongoing refusal to comply with the rules. He was also of the view that the corporation’s request to evict the tenant had been too heavy-handed. He criticized both parties for having adopted a confrontational position and suggested that it would have been more appropriate to simply approach the owner and tenants to request their assurance that, in the future, they would abide by the rules. (I am a bit skeptical as to how successful such an approach would have been, considering the volume of complaints and numerous warnings from the corporation). Still, the judge was of the view that the corporation should not have sought the extreme remedy of eviction, which inevitably would lead to the owner and tenants strongly opposing the court application.
When came the time to decide on the costs of the court proceeding, the judge ordered the owner and tenant of unit 511 to pay $2,500, which amount was added to the unit’s common expense. Considering that the hearing appears to have lasted 2 days and considering the history of the case, I suspect that this is a drop in the bucket and that the corporation was on the hook for far more. Undoubtedly, the rest of the owners will have to absorb the bulk of the costs of this battle between neighbours.
What about mediation?
The case does not address the question of mediation. Keep in mind that mediation is not mandatory under the “current” Condominium Act when corporations seek compliance against tenants.
Under the “New Condo Act”
Under the revised version of the Condominium Act, courts will only be able to order a permanent eviction if:
- A person poses a serious risk to the health and safety of individuals or poses a serious risk of damage to the property of the corporation;
- If the person is found to be unsuited for the communal occupation/use of the property and no other order will be adequate to enforce compliance.
This addition under section 135 of the Act further confirms that such recourse must be one of last resort.
This is another case where a corporation is reminded to take a more conciliatory approach when dealing with compliance issues. Progressive, escalating and proportional steps should be considered – unless an occupant’s behaviour is such that it puts other people at risk.
Still, it is hard not to feel sorry for the corporation, considering the volume of noise complaints, the numerous warning letters and considering that a condominium corporation has a statutory obligation to take reasonable steps to secure compliance.