Are condos entitled to enter units to repair and maintain common elements?
As our first blog post of the year, we revisit the question of whether condo corporations are entitled to enter a unit to repair and maintain common elements. As you will see from a 2023 decision, an owner’s refusal to permit access to their unit can end up being costly to them.
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Facts of this case
The McNeil decision is short and does not present a lot of factual background information. However, we can surmize the following from the judge’s endorsement.
The Corporation’s engineers had identified the fact that the existing epoxy liner coating had not successfully been applied to the risers and was showing signs of failure and pinhole leaks. The Corporation entered into a $1.7M contract to remediate the situation. We gather that Mr. McNeil opposed the work and was of the view that the work was not required. Based on his views, he prevented the Corporation from accessing his unit to conduct the required work. The Corporation brought a court application for an order allowing the Corporation to enter the unit to gain access to the adjacent common element riser to make the required repairs.
It seems Mr. McNeil sought an adjournment of the court hearing to allow the dispute to be submitted to (what he believed was mandatory) mediation or to allow him to get a motion date to get the Corporation’s court application dismissed as an abuse of process.
That’s all we can gather from the decision about the facts underlying this court case.
Mediation not required
Many (but not all) disputes between an owner and the condo corporation are subject to mandatory mediation. However, disputes with respect to the Condo Act (as opposed to disputes related to the governing documents) are not subject to mandatory mediation. In this case, the dispute pertained to the following disposition under the Condo Act:
- Section 19, which permits a right of entry to a unit on reasonable notice;
- Section 117, which prohibits any act, omission or condition which is likely to damage the property or cause an injury or an illness to individuals.
As the dispute pertained to provisions of the Act, mediation was not required. We do note that many Declarations also include language permitting access to units. Had the Corporation relied on such a provision, it may have been required to go through mandatory mediation.
Access to units
Section 19 of the Condo Act is clear:
the corporation or its agents are authorized to enter a unit (or part of the common elements of which an owner has exclusive use) at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation.
In our view, this article alone would have been sufficient to allow the Corporation to access the unit to repair the common elements. Indeed, the Corporation has an obligation to repair and maintain common elements. As such, access was clearly required for the Corporation to perform its objects and duties.
In this case, the Corporation also relied on section 117, which (as stated above) prohibits any act, omission or condition which is likely to damage the property or cause an injury or an illness to individuals. In this case, not remediating the failing epoxy in the riser created a clear risk of damage to other units and/or common elements. The position taken by the owner (preventing access to his unit to fix the issue) was therefore in breach of section 117 of the Act.
Decision
Unsurprisingly, the judge issued an order authorizing the Corporation to enter the unit to proceed with the repairs.
The judge imposed on the owner any additional remobilization cost resulting from having the contractor return to the corporation (as they had already repaired the rest of the risers). Indeed, the judge concluded that it would be unfair to impose on the other owners this cost.
Finally, the judge ordered the owner to pay in excess of $29,000 in legal cost.
Lessons learned
This is really not a new lesson: The Corporation or its agents are entitled to enter the unit on reasonable notice at a reasonable time.
When determining whether the Corporation is entitled to enter a unit, you need to turn your mind to the following:
- Who will enter the unit: It must be the corporation or a person authorized by the corporation (so an employee, an agent, or a contractor acting for the corporation);
- The purpose of the required access: This right of access is limited to what is needed to perform the objects and duties of the corporation or to exercise the powers of the corporation;
- The timing of the access: The right of entry can only be exercised at a reasonable time;
- The notice given prior to access: The corporation must give reasonable notice before entering.
The Condo Act does not provide any guidance on what is reasonable notice or what is a reasonable time of access. This will greatly vary depending on the issue at hand. For instance, I would expect that:
- Urgent access requires less notice;
- The timing of the access would also depend on the reason to enter the unit. Again, an urgent situation may require evening access; or daytime access when the owner is absent;
- Finally, access to one’s parking unit requires far less notice (perhaps none) than access to a residential unit;
So, what about in cases of emergencies? In the O’Regan case, immediate access without any notice was found to be proper in a situation where the in-suite smoke detector was ringing. However, in that case, the Corporation also had a provision in its declaration authorizing access without notice in case of emergencies. Still, we think that the courts would likely recognize that notice cannot always be given in urgent situation.
Still, it may make sense for you to review your governing documents to ensure you have some language authorizing access without notice in case of emergencies and, most importantly, providing some form of protection/immunity for the corporation and those entering the unit. Ask your favourite condo lawyer about this.
Happy New Year!!