An interesting decision recently came out of the Condo Authority Tribunal (CAT) on a dispute over a basketball hoop installed in a driveway. This case sheds some light on how the CAT is applying its new jurisdiction over parking disputes and is a helpful reminder that not all breach necessarily require the same response.
This is the story of an owner who rolled a portable basketball net onto her exclusive use common element driveway, between her garage and that of her neighbour for her kids to play in the driveway.
Another owner vehemently objected to this, alleging that this was in breach of the corporation’s rules, created a safety risk and was opening a pandora’s box to multiple basketball hoops being installed throughout the complex.
Interestingly enough, this second owner did not appear to be the neighbour owning the second garage affected by the hoop.
As is often the case, this dispute escalated and caused acrimony among some of the residents of the 25-unit townhouse community. It even made its way to their AGM last October.
The rules being breached
Interestingly, the installation of the hoop could appear to be in breach of multiple provisions of the corporation’s governing documents including the following provisions in the declaration:
- … the use of common elements cannot unreasonably interfere with the use or enjoyment of the common elements by others;
- No alteration, work, repairs… or erection of any kind in the relation to the common elements;
- Each driveway shall be used and occupied only for motor vehicle parking purposes.
The rules also appear to prohibit the installation of the basketball hoop:
- All bicycles,… toys and like objects shall be removed from the common elements and the front yards of all units;
- No articles, other than seasonable furniture, shall be placed on the front portion of each unit;
- the… driveways shall not be obstructed or used for any purpose other than for ingress and egress to and from their respective Units;
- No… structure… shall be kept or maintained on the common elements…
First, the CAT confirmed its newly acquired jurisdiction but clarified that it could only rule on the portion of the dispute that dealt with any rule that “prohibit, restrict or otherwise govern the parking or storage of items on … the common elements”. As such, the CAT declined to rule on any other side-issues such as safety and security (if the ball was to roll onto the street) or such as nuisance.
Somewhat to my surprise, the CAT ruled that the installation and use of the basketball hoop was not in breach of the rules related to the parking. The CAT concluded that the rule dealing with parking was really more concerned with what was being parked on it (ie, the size of the vehicles being parked) rather than the use being made of the parking space.
I’m not sure I would have necessarily ruled that way but I don’t sit on the CAT and … I don’t play basketball.
When to enforce a rule
Most interestingly for me is the portion of the decision that deals with when to enforce condo rules. While condo corps cannot turn a blind eye and inconsistently enforce rules, not every breaches to a rule require enforcement, apparently.
The CAT reminded us that enforcing rules involves balancing competing interests: in this case one owner wanting her kids to be active and another one being concerned about the safety of kids playing in the lane. The CAT ruled that the board’ conclusion that there was no breach to their rules was not unreasonable:
Courts have clearly stated that while a board has a duty to enforce its own declaration and rules where the violation is causing a problem, not every minor violation of a declaration must be met with an enforcement procedure. A condominium board is vested with some discretion in deciding the manner and extent to which it should enforce its declaration and rules and is owed some deference, provided it acts reasonably and not capriciously.
Naturally, it is risky for a corporation not to enforce its governing document. First, section 17 of the Act provides that a corporation has a duty to take all reasonable steps to ensure that the owners (and others) comply with the Act, the declaration, the by-laws and the rules. Section 119 provides that owners shall comply with these documents and that all other owners have a right to expect such compliance.
Second, not enforcing rules in certain instances, makes it difficult and risky to enforce it in others. A consistent approach is the best approach.
You can read the full decision here.
An interesting case, which made for an interesting non-COVID blog post.