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Both tenant and landlord responsible for tenant’s disruptive conduct

A recent case out of the Condo Tribunal highlights very important (and costly) lessons for both the owner and tenant of a unit following a chronic pattern of disruptive and aggressive behaviour on the tenant’s part, which unreasonably interfered with the comfort and quiet enjoyment by other residents. Landlords may want to pay attention to this one to avoid being left holding the bag.

Facts of this case

Shortly after the arrival of a new tenant at a Toronto condo, the corporation received several complaints from residents and numerous incident reports filed by security with respect to the highly disruptive presence of the tenant and one of their guest.

The reported issues included:

  • Objects (cardboard and food deliveries) left in the hallway, resulting in “foul smells and tripping hazards”.
  • Noisy disturbances coming from thy unit, including “loud and excessive screaming, yelling, shouting, arguing, swearing, throwing items, banging, and slamming noises”.
  • Disruption or annoyance of staff, treating them as their personal delivery service and “verbally abusive” and “highly aggressive, threatening conduct” towards them.
  • Breaches of various rules or standards in place at the corporation, including non-compliance with the condo’s COVID-19 regulation and rules on noise/nuisance.

The tenant took the position that he was being “singled out”, treated as a “second class citizen” and that he was the victim of a “personal vendetta” – but little evidence or explanation supporting these allegations were filed with the CAT.

Governing documents

Various sections of the declaration and rules were relevant in this case. These provided that:

  • No unit shall be occupied or used by anyone in a manner that will unreasonably interfere with the use or enjoyment by other of the common elements and units.
  • Tenants shall not create or permit the creation of any noise or nuisance which, in the opinion of the board or manager, may disturb the comfort or quiet enjoyment of the units or common elements by others.

The above is just a summary of these provisions. Those interested should take the time to review the actual provisions as reported in the decision.

CAT Decision

The CAT concluded that both the tenant and the landlord had created or permitted the creation of noise and other nuisance that disturbed the comfort and quiet enjoyment by others of units and common elements.

The CAT ordered the tenant to immediately cease all disruptive conduct (by him or his guests).

The CAT also ordered the unit owner to comply with his obligations to take all reasonable steps to ensure that his tenant comply with the governing documents.

Lessons for landlords

In this case, the landlord appears to have taken little to no steps to obtain his tenant’ compliance or to have him evicted from the property. He appears to have relied on the corporation to prosecute the CAT application for his benefit.

On this, the CAT ruled that the landlord failed to take any reasonable steps to address the issue of his tenant’s long-standing non-compliance. Despite having commenced a CAT application himself, he failed to pursue it and was barely involved in this one. There was no evidence of any attempts to intervene, assist or otherwise seek to resolve the issues caused by his tenant. He basically took a hand-off approach leaving this compliance matter entirely on the shoulders of the corporation.

Owners leasing their units are responsible for the conduct of their tenants (both under the Condo Act and under most declarations). Landlords cannot take a laissez faire approach when their tenant’s conduct is in breach of the applicable rules. A failure on a landlord’s part to actively take steps to ensure their tenants comply with the applicable rules may leave them in very hot (and costly) waters – as you will see from below.

Indemnification

The corporation sought some $45,000 in legal fees, taxes and disbursements.

Of interest, the corporation’s governing documents included very strong indemnification provisions, which provided that:

  • Owners had to indemnify the corporation and bear any loss, cost or damage incurred by the corporation by reasons of a breach of any rules or by-law.
  • It also provided that such cost was recoverable as a common expense.

This decision provides an exhaustive and detailed analysis of the CAT’s powers and authority to impose costs and damage.

Of interest, the CAT relied on the corporation’s indemnification provisions and on section. 1.44(1)(3) of the Condo Act to order the landlord and tenant to pay damages as a result of these acts of non-compliance.  The Act specifically provides that such damages are not to exceed $25,000.  This form of compensation is separate and apart from actual costs awards.

When all was said and done:

  • The owner and tenant were ordered to pay $200 in tribunal fees;
  • The owner was ordered to pay $8,551 in legal costs;
  • the owner and tenant were jointly ordered to pay $18,239 in compensation.

Of interest, the $18,239 compensation award represents about 65% of the corporation’s legal costs, which is in line with the indemnity scale that traditional court grant the successful party.

This may signal an interesting development in how the CAT will tackle costs and damage awards in serious cases.

You can read the entire decision here.

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