Enforcement Of Condominium Declarations

Of all the various responsibilities of a condominium board, perhaps none is as important as ensuring that its unit owners are in compliance with the terms of the corporation's Declaration, Rules and applicable By-laws.

Given the significant increase in the number of new condominium developments in Ontario, it is not surprising that there has been a corresponding increase in the number of "compliance"¹ proceedings commenced by condominium corporations against defaulting owner(s).

Recently, in the case of Peel Condominium Corporation 108 v. Young,² the condominium corporation commenced an Application before the Ontario Superior Court of Justice against a unit owner to enforce its Declaration. The issue here was that the unit owner installed a tankless gas water heater in her unit, without the consent of the Board. The reason why the consent was necessary was that the owner constructed a vent through the outside wall of the unit, which formed part of the common elements of the building. Under the Declaration, the unit owner was to obtain the consent of the Board prior to making any changes to the common elements.

The condominium corporation took the position that this change was a clear contravention of the Declaration, and that the unit owner should be ordered to remove the vent. The unit owner took the position that there had been "selective enforcement" by the Board, and that there had been past breaches of the Declaration by other unit owners that did not lead to compliance proceedings.

Although the court found that there had been "a degree" of selective enforcement by the Board in the past, this was ultimately not justification for the fact that the unit owner in the present application was in breach of the Declaration. According to the Court, "there is an interest, in the collective, in having the Declaration enforced, even if some transgressors have been allowed to violate it."

This case is another important reminder to unit owners of the importance placed by condominium corporations in ensuring that unit owners comply with the Declaration, Rules and Bylaws.

(Originally published on June 29, 2011 on the Condo Reporter blog.)

Footnotes

1. http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_98c19_e.htm#BK162

2. http://www.canlii.org/eliisa/highlight.do?text=peel+Condominium+Corporation+108+v.+Young%2C&language=en&searchTitle=Ontario&path=/en/on/onsc/doc/2011/2011onsc1786/2011onsc1786.html

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