Short Answer: The Bylaws may become unenforceable.
Condominiums have a duty under the Condominium Property Act, RSA 2000 c C-22 to enforce their Bylaws and ensure compliance by all unit owners and occupants. But they must also ensure that such enforcement is done on a consistent basis and in a timely fashion, which means taking the first enforcement steps promptly upon learning that a Bylaw is not being followed.
A recent decision by Ontario's Condominium Authority Tribunal (CAT) confirms that if a Bylaw is not enforced by the corporation for some time, it may become unenforceable, requiring the condo corporation to take additional steps before having the power to enforce compliance with that Bylaw once again.
In Metropolitan Toronto Condominium Corporation No. 735 v Verstova, 2022 ONCAT 1, a condominium sought to enforce a provision in its Declaration (similar to condo Bylaws in Alberta) stating that no pets were permitted in the residential units. However at an unknown date, the corporation had passed a Rule permitting pets, in direct contrast with the existing restriction in the Declaration. Like Alberta, Ontario's condominium legislation requires Rules passed by a Board of Directors to be consistent with the corporation's Declaration. In the result, the Rule was invalid, but because the restriction against pets was not being enforced, that restriction had become unenforceable over time as well.
In 2013, the condominium corporation replaced the Rule permitting pets with one prohibiting pets in order to be consistent with the Declaration. However it decided to extend permission for any pets that had been brought into units while the old Rule was in force, merely requiring them to be registered within thirty (30) days of enacting the new Rule. This is known as “grandfathering”, and is generally a requirement whenever condo corporations make changes to their governing documents.
The unit owner involved in this matter had brought a dog into her unit while the Rule permitting pets was in force. Then at some time after the new Rule prohibiting pets was introduced (which was the step taken by the corporation to begin enforcing the existing restriction once more), she also brought a cat into her unit. The condo corporation learned about the cat in 2019 when other residents complained about the smell of cat urine in and around the unit. The cat had also caused damage to common property which resulted in the corporation having to incur costs for repair.
The corporation sent two (2) letters to the unit owner in 2019 requesting removal of the cat from the property. Letters from the corporation's legal counsel followed over the next year and a half. All these communications went unanswered, so the corporation filed an application for an order that the cat be removed, also seeking reimbursement of expenses incurred to repair the damage it had caused. Ultimately, the Tribunal issued the requested order for removal, but reduced the corporation's award for damages and legal costs. It held that “had the corporation acted more decisively after it was informed of the problem … the extent of damage would likely have been reduced.”
What does this mean for Alberta condominiums?
While decisions of Ontario's CAT are not binding in Alberta, the logic taken from this case is undeniable. A condominium corporation may not be able to enforce a Bylaw restriction if it has failed to consistently enforce the Bylaw in the past or if it has created a Rule which is contrary to the Bylaw.
In either case, occupants may reasonably believe that the Bylaw will not be enforced and that they will not be penalized by failing to comply with it. If the condominium attempted to penalize an occupant for not complying with the Bylaw, it could be considered unfairly prejudicial and improper conduct such that the corporation itself might be susceptible to legal penalties.
Condominiums could revive a Bylaw by taking deliberate action. This might include enacting a new Rule which is consistent with the Bylaws and revokes an old, inconsistent rule or long-standing practice. Or it may be issuing a notice to all owners and occupants that the Bylaw will be enforced going forward, as of a certain date. What's important is that a grandfathering provision be included under which any violations of the Bylaw that occurred during the period in which it was not being enforced will not be punished.
Other circumstances that may prevent enforcement include the simple passage of time. If a condo corporation seeks compliance with its Bylaws, such as removing an unapproved pet or modification to a unit, and the owner or occupant does not agree with the desired action, the corporation would ultimately be obliged to commence legal action for a court order in its favour (since Alberta does not have a condominium tribunal, unlike Ontario and British Columbia). If the corporation does not commence such action within two (2) years from the time it first “knew, or in the circumstances ought to have known” that a Bylaw had been violated, the Limitations Act can be invoked as a complete defence by the respondent owner/occupant.
Even if court action is commenced by a condo corporation before expiry of the applicable limitations period, the court may still decide that enforcement is unreasonable in the circumstances. A lack of diligence and activity in pursuing a claim (legally known as laches) may be viewed as prejudicial, as the corporation's failure to enforce a bylaw could be considered acquiescence, leading the owner/occupant to believe that the bylaw would not be enforced against them.
Laches is based on the principle that one is obliged to assert legal rights in a timely way or risk losing them. The passage of time before enforcement may result in changed circumstances, lost evidence, or the owner/occupant structuring their affairs or otherwise acting in a manner they would not have done had they known the Bylaw would be enforced. Laches is an equitable doctrine that considers the relative justice between the parties. Basically, it may be considered unjust to give a remedy where a claimant has, by its conduct, done that which might fairly be regarded as equivalent to a waiver of its claim, or where by its conduct and neglect the claimant has, though not waiving entitlement to the remedy, put the other party in a position which would be considered unreasonable if the remedy were afterwards asserted.
In summary, while condominium corporations need not (and should not) rush to court for every failure to comply with the Bylaws, they must act promptly upon learning that a Bylaw is being violated. This will by necessity include conducting any required investigation, passing appropriate resolutions of the Board, informing the owner and/or occupant of the Bylaw requirements and allowing time for compliance, and then taking steps to correct/deter the violation from repeating or continuing. The corporation must be diligent in taking corrective actions, and may have to proceed to court promptly if compliance cannot be obtained through incremental enforcement steps.
What steps should my condo corporation take to prevent problems?
Bylaw enforcement might start with a general notice being sent out to all owners and occupants, in order to remind everyone of the corporation's requirements and restrictions. This might be followed by warning letters sent to individual violators with clear time limits for compliance before further action is taken and notice of consequences for failing to comply. Enforcement may then escalate to the issuance of monetary or other sanctions upon an owner or occupant who has ignored the warning letters and deadlines. Finally, it may culminate in some cases with commencement of court action if the owner or occupant's improper conduct has not been deterred by fines or other sanctions.
In general, the following tips will help to ensure that condo corporations are in a position to enforce the Bylaws when and if it becomes necessary to do so:
- All Board members and condominium managers should be familiar with the content and requirements set out in the condominium's Bylaws (a basic understanding of the provisions of the Condominium Property Act and Regulation is also advisable), and corporations should seek appropriate legal advice when in doubt
- Any existing or new Rules should be compared with the Bylaws to ensure consistency
- If a Rule would be contrary to a Bylaw, that rule should not be approved by the Board
- If a Rule has been approved that is contrary to a Bylaw, it should be revoked by the Board
- All owners and occupants must be notified of any new or revoked Rule, and of any Bylaw that will be enforced that has not been enforced by the Board in the past, and the corporation should provide a timeframe for when enforcement will begin as well as set out the consequences for non-compliance
- Bylaws must be enforced equally against all owners and occupants, BUT any owner or occupant who followed a contrary Rule while it was in place should not be penalized if, by following the Rule, they violated a Bylaw that was not being enforced
- If damage has been caused by owners or occupants in violation of the Bylaws, condominiums should act promptly and decisively to repair the damage and take steps to prevent future damage, or else risk losing their entitlement to be reimbursed fully or at all for these expenses
There are a number of court decisions in Alberta highlighting the importance of complying with condominium Bylaws, and several that illustrate the potential for extreme consequences to violators, ranging from liability for monetary sanctions and chargebacks to significant legal bills. It's also possible for a condo corporation to seek and obtain a forced sale of a unit as a result of multiple, repeated Bylaw violations by an owner.
The decision of Ontario's CAT is however instructive with regard to the potential impact on a condo corporation, and by extension on all the unit owners, if the Bylaws are not being enforced reasonably, consistently, and promptly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.