Troublesome Tenants in Condominiums

PRESENTED BY:  J. Douglas Shanks on January 19, 2008, at the Port Arthur Ukrainian Prosvita Society in Thunder Bay, Ontario to the Canadian Condominium Institute, Northwestern Ontario Chapter.

Doug Shanks practices law at the firm of Cheadles LLP in Thunder Bay, Ontario.

I N D E X

Introduction

1. Getting to Know Your Tenant
2. Statutory Rights and Obligations
3. A Step-By-Step Guide to Dealing with a Problem Tenant
4. Some Examples
5. Remedy in Damages
6. Self-Help Not Recommended
7. Remember Occupier’s Liability
8. Residential Tenancies Act and the Unit Owner

Summary

• Selected Sections of the Condominium Act, 1998
• Form 5, Summary of Lease or Renewal
• Selected Sections of the Residential Tenancies Act, 2006
• Carleton Condominium Corp. No. 555 v. Lagace,  [2004] O.J. No. 1480
•  Niagara North Condominium Corp. No. 125 v. Waddington,  [2007] O.J. No. 936
•  Allison v. Rank City Wall Canada Ltd. [1984] O.J. No. 3094, 45 O.R. (2d)

Tenants and the Condominium

INTRODUCTION

Condominium Corporations and their Board of Directors unfortunately often have to deal with tenants that are causing problems for the other occupiers of the condominium.  Unit holders in the condominium that have rented their condominium unit to a tenant also have to deal with troublesome tenants.  The following material deals with some of the issues that can arise when tenants, and their guest, are not abiding by the “rules of the road” of the condominium.

The Property Manager and Board of Directors of the Condominium Corporation end up dealing with the unit owner.  Since the unit owner is often not living in the building, then the Property Manager directly, and the Board of Directors more indirectly, end up having to deal with the tenant and guest of the tenant that are causing problems.

The unit owner has to deal with the tenant and the tenant’s guests, since the Condominium Corporation and the Property Manager will be notifying the unit owner of the problems.  The unit owner has to deal with his/her obligations under the Condominium Act to the Condominium Corporation and the other unit owners, while at the same time having to abide by his obligations under the Residential Tenancies Act.

Set out below are some of the issues that will arise when tenants and/or their guests are causing problems in a condominium unit.  The following material and the presentation are not meant to be legal advice for a specific situation, and cannot be relied upon for any purpose other than general advice.  For advice in specific situations, legal advice based on the facts of the situation should be obtained.

1. Getting to Know Your Tenants

If a unit owner leases the unit, the unit owner is required by s.83 of the Condominium Act  (the “Act”) to inform the condominium corporation.

Form 5 of the Condominium Act Regulations provides a template for the unit owner to inform the condominium corporation about the tenants.

Form 5 requires that the Condominium Corporation know the name of the tenant, phone number, fax number, commencement date of the lease, termination date, options to renew, rental payments, confirmation that the tenant has been provided with a copy of the declaration, by-laws and rules of the Condominium Corporation and that notice will be given when the lease terminates.

2. Statutory Rights and Obligations

Unit Owner’s Responsibility to Inform a Tenant of Condominium Declaration, By-laws and Rules

A unit owner is to take all reasonable steps to ensure the tenant is aware of and is abiding by the condominium declaration, by-laws and rules and the Condominium Act under s.119(2) of the Condominium Act.

Compliance with the Act, Declaration, By-Laws and Rules

The unit owner and an occupier of a unit must comply with the Act, the declaration, the by-laws and the rules of the Condominium Corporation (Section 119(2)).

The Condominium Corporation and an owner have the right to require the owner and the occupier of a unit to comply with the Act, the declaration, the by-laws and the rules (Section 119(3)).

An owner may make reasonable use of the common elements of the Condominium Corporation, subject once again to the Act, the declaration, the by-laws and the rules (Section 116).

No person is to permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual (Section 117).

Powers of the Court: A Compliance Order

A condominium corporation or the owner of a unit may make an application to the court under s.134 of the Condominium Act for an order that the tenant comply with the provisions of the Act or the by-laws of the condominium.

The compliance order can have two parts:

(1) An order for the tenant to comply with the rules, etc. of the condominium; and

(2) An order for the tenant to pay for the damages done to the condominium.

The court generally cannot terminate a tenancy except under these two circumstances:

(1) If the tenant breaches an existing court order; or

(2) The tenant has failed to remit the common expenses after the owner has defaulted on the payment, and the tenant has received written notice from the condominium corporation about the default.

If the condominium corporation is successful in obtaining a compliance order and damages have been awarded, the damages must first be applied to the outstanding common expenses.  Should the award be insufficient to cover that amount, the condominium corporation can pursue the shortfall from the unit owner.

If a unit owner doesn’t pay the common expenses, then the Condominium Corporation has a lien against the owner’s unit for the unpaid amount.  A certificate of lien can be registered against the owner’s unit in the Land Registry Office after at least 10 days written notice to the owner.  The lien may be enforced in the same manner as a mortgage, meaning that the property could be sold under power of sale and the proceeds used to pay off the monies owing for common expenses (Section 85).

3. A Step-By-Step Guide to Dealing with a Problem Tenant

The condominium corporation should advise in writing the unit owner about the tenant’s breaches of the by-laws, etc.

• The unit owner should be encouraged to work with the tenant to ensure the tenant’s compliance with by-laws, etc.
• The condominium corporation should also advise in writing the tenant of the by-law, etc. breaches and encourage the tenant to comply with them.
• Obtain the necessary evidence to prove the breaches of the tenant (see Step 2).

Step 2

If problem continues, consult the condominium corporation’s solicitors.  Documents exchanged between the condominium corporation, the tenant and the unit owner should also be forwarded to the solicitors.

These documents may include:

• warning letters regarding the tenant’s breach of by-laws sent by the condominium corporation, and responses to these letter
• complaint letters sent by neighbouring residents
• invoices for the costs of repairs to common areas
• pictures of damage to the common areas (before repairs)
• if there are parking violations, the license plate number, make and model of the car(s) involved.

Step 3

• The condominium corporation should issue a final warning to the owner and the tenant stating that further breaches of the by-laws will result in a court application for a compliance order.
• The letter should also warn the unit owner that the condominium corporation will be seeking to recover the cost of the application from them.
• The letter should also set out other relief that the condominium corporation is seeking.

Step 4

If the problem persists, the condominium corporation should provide written instructions to its solicitors to proceed with a court application

When bringing an application for a compliance order, there is a possibility that the court will award costs of the application against the condominium corporation if the court feels that the corporation has not given the tenant and the unit owner adequate warning about the consequences of non-compliance.

The number of warnings that a condominium corporation should give to the unit owner and the tenant for by-law violations will depend on the ongoing damage caused by the tenant.  If the tenant is causing serious damage, one warning may be enough.  If the tenant is merely causing a nuisance, the condominium corporation may have to issue several warnings before a court application can be brought.

Photos are necessary if there is damage to another unit or to the common elements.  The condominium corporation should take photos of the damage before repair.  Invoices of the repairs should be kept and forwarded to the condominium corporation’s solicitors.

4. Some Examples

Carleton Condominium Corp. No. 555 v. Lagacé [2004] O.J. no. 1480 (Ont. Sup. Ct.)

Facts: Shea and Spero rented their condominium unit to Lagacé.  Lagacé broke a number of by-laws, and caused annoyance to other residents.  A meeting was then held between Shea, Spero, the management company and Lagacé where the various complaints against Lagacé were reviewed.  Lagacé undertook to comply with the by-laws.  For a brief period after the meeting, Lagacé abided by the by-laws.  When Lagacé began breaking the by-laws again, the condominium corporation sought a compliance order.  Shortly after the order was granted, Lagacé abandoned the unit.

Question: Who was responsible for the costs of the condominium corporation’s application for a compliance order?

Ruling: The condominium corporation’s legal relationship was with the unit owner.  The unit owner had a legal relationship with the tenant.  Since the unit owner was the party between the condominium corporation and the tenant, the unit owner was responsible for the tenant’s behaviour.  The condominium corporation expected the unit owner to abide by the condominium’s by-laws, and in turn, the unit owner could require the same from the tenant.  Therefore, when a tenant breached the by-laws, the condominium corporation could demand compliance from the unit owner, who would turn to the tenant for the same.

If the unit owner was to be responsible for the tenant’s conduct, the unit owner must be informed of the tenant’s infractions.  There was a duty on the condominium corporation to inform the unit owner before the corporation could seek legal costs against the owner for an application to enforce the tenant’s compliance with the by-laws.

If a condominium corporation is seeking the costs of getting a compliance order for an unruly tenant from the unit owner, the unit owner must be given adequate notice.

Niagara North Condominium Corp. No. 125 v. Waddington [2007] O.J. No. 936 (Ont. C.A.)

Facts: The defendant, Waddington, was a tenant who owned two cats.  The plaintiff condominium corporation had a by-law that did not allow for pets in the building.  The unit owner landlord brought an application to remove Waddington’s pets, but failed.  The condominium corporation was not involved in that application but was aware of it.  The condominium corporation then brought a second application to enforce its by-laws to remove the pets.

Question: Could the condominium corporation enforce a bylaw when the unit owner failed to do so?

Ruling: The court refused to hear the application because

• the condominium corporation was aware of the unit owner’s application to remove the cats;
• the condo corporation did not seek to join that application;
• this second application related to substantially the same issue as the unit owner’s first application.
• You only have one kick at the can–the condo corporation cannot seek to enforce a by-law through a separate application if a unit owner failed to do so in an earlier application.

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