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Condos must enforce their visitor parking rules

Here is another case involving visitor parking.  In this case, the CAT ordered the condo to enforce its existing rules and to implement measures to better regulate the use of their visitor parking.

Facts of the case

The condo complex at the centre of this litigation has 25 common element visitor parking spaces for approximately 200 units.

A condo owner was concerned about what she perceived to be persistent and widespread violations of the restrictions on visitor parking. Amongst other issues, she claimed that owners were using the visitor parking spaces as overflow parking for their own unit.

The corporation was of the view that there was no “prevailing” issue, that management communicated effectively with owners in breach of the visitor parking and that there were no other complaints about the lack of visitor parking.

While many of the incidents presented as evidence by the owner were “unpersuasive” and did not demonstrate a widespread problem, some did.  For instance, the evidence showed that a car had been parked for over 5 months without a parking permit and was allowed to remain after the permit had expired.  Another car was parked in the visitor parking for “a few weeks”, without the required overnight parking permit. Despite a towing warning having been placed  on the car, the car was not towed.

Decision

The Condo Tribunal ruled that the owner had not been able to demonstrate the existence of a widespread parking issue, but she was able to demonstrate that there were a small (but blatant) number of violations, some which lasted for months.

The Tribunal concluded that the corporation did not enforce the rule requiring overnight parking permits and did not maintain a current registry of license plate numbers of cars belonging to residents (as was also required by one of the rules).  Without this registry and without enforcing the overnight parking requirements, it was impossible for the corporation to determine which car belonged to a bona fide visitor.

Must condo enforce all of their rules?

This case presents an interesting discussion on whether condo corporations must enforce all of their rules all of the time.

Under subsection 17(3) of the Condominium Act, a condominium corporation, “has a duty to take all reasonable steps to ensure that the owners [and] the occupiers of units […] comply with this Act, the declaration, the by-laws and the rules”. There is an element of discretion implied by the use of the word “reasonable” in this provision. It is not necessary to enforce every minor infraction of every rule. However, the violations shown by Ms. Watson to have occurred in this case are not minor infractions. Moreover, by not enforcing Rules 9(e) and (f), PCC 544 has made it impossible for itself to enforce the visitor parking provisions in its governing documents. PCC 544 cannot be considered to be taking reasonable steps to enforce its parking rules in these circumstances.

Order

Based on the above, the Condo Tribunal ordered the corporation to implement low-cost actions that would minimize future visitor violations.  These steps included implementing :

  • a system of issuing overnight permits
  • a license plate registry for the owners
  • effective random overnight patrols and ticketing of cars in violation of the rules

It is to be noted that the systems identified above reflected the corporation’s existing rules.  These may not apply to your condo corporation.

Can the condo tow cars ?

There was also an interesting discussion on whether this corporation had the authority to either ticket or to tag/tow cars. The corporation argued that implementing such a system would require that they change their parking signs, which they argued would be expensive (?).  The Tribunal questioned this and opined that one would assume the cost for 25 signs to be moderate. Still, the Tribunal left it to the corporation to determine what low-cost parking control system would work best.

The Tribunal reminded the corporation to properly advise the owners of any changes in the enforcement procedure.

Lessons and takeaway

The most important takeaway is to take reasonable steps to enforce your existing rules consistently.

It may be time to ask your favourite condo lawyer to review your parking rules to ensure they reflect the needs of your corporation… or risk “parking up the wrong tree”.

You can read the decision here.

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