Living in a residential condominium represents a compromise of choice. In exchange for relinquishing a measure of control, unit owners are freed of the many day-to-day chores, or outright headaches, of home ownership. This compromise only works, however, if everyone agrees to live by the rules. Although the vast majority of unit owners are nothing less than ideal ‘condominium citizens’, some condominiums are also home to the ‘condo-commando’, for whom the rules are merely optional. For the unbending unit owner unwilling to lower his stereo’s volume or remove his biting dog, enforcement measures await. As it should be, for many volunteer directors bringing enforcement proceedings against a neighbour is an unsavoury job. Taking your neighbour to task, no matter how commendable, leaves little comfort during the next mutual elevator ride. Enforcement proceedings, no matter how black and white they may appear to the board, the property manager or condominium lawyer, come with no guarantee other than costs. Nonetheless, adopting a uniform enforcement strategy, and consistently ‘controlling the controllables’, may ensure a corporation’s consistent path to success.
What is Enforcement?
In this article, enforcement is a generalized term, implying that the condominium corporation has exhausted all attempts at voluntary compliance. Despite the phone calls, letters and outright pleas, the unit owner demands to park her car in visitor parking every night, notwithstanding the outright prohibition in the condominium’s declaration. The condominium must finally turn to the enforcement provisions of the CondominiumAct, 1998, S.O. 1998, c.19; (“the Act”), invariably meaning referring the matter to a mediation/arbitration process, or directly to the courts via a compliance order application. Although different, they both represent the resolution of a dispute by an independent decision maker who has the legal authority to grant a binding decision. Every action and decision made by a board should be made with this final process in mind and the question, ‘will this step ensure our corporation’s success should a hearing be necessary?’ Here, perhaps, are a few tips to ensure that the answer is a consistent yes.
The remainder of this article will utilize the following hypothetical situation. The condominium corporation is a twenty-year-old high rise apartment styled building. With sixteen units per floor, it is considered high density living. Since creation, its declaration has maintained a blanket ‘no dogs’ clause. The condominium corporation has always had a property manager, and through the efforts of both the property manager and board, has historically been able to resolve any breaches with little more than a phone call.
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