Section 119 of Ontario’s Condominium Act, 1998(the “Act”) requires the condo corporation and any director, officer, employee, owner and occupier of a unit to comply with the Act, and the condo corporation’s declaration, by-laws and rules. An owner of the unit must also take reasonable steps to ensure that an occupier of the unit (i.e. tenant) and any guests or invitees comply with the Act, and the condo corporation’s declaration, by-laws and rules.
When determining how best to enforce compliance, the board should consider creating an enforcement policy, which sets out, among other items, the following:
Who does the policy apply to (i.e. owners, tenants, guests and invitees)?
How should a contravention be reported and to whom?
How should the complaint be documented and retained?
Who should investigate the complaint?
How should the investigation be documented and retained?
and What enforcement steps should be taken in the event a contravention is substantiated?
Often, the challenge from a governance perspective for the board or property manager is identifying the culprit.
First and foremost, residents need to be made aware of their obligations to report contraventions to management and security as they happen (and not once a year at the Annual General Meeting). The board should consider implementing a campaign to educate residents about the condo corporation’s governing documents (maybe even highlighting certain provisions that are regularly being contravened). More importantly, the board should advise residents how and when to report contraventions.
It is of utmost importance to also communicate a clear and concise plan of attack with the condo corporation’s team including property management and security. Everyone needs to be on the same page. For example, how does security or management investigate/respond to a complaint? How does security or management report or document the complaint?
For compliance issues where there is no direct evidence (i.e. a witness to the contravention), it is important to gather as much indirect evidence as possible to provide the board with a reasonable basis to proceed with enforcement steps. Management should retain all the complaints pertaining to the contravention and security should document the results of any investigations. Once compiled, all of this information should be reviewed and a decision should be made regarding next steps.
The courts have clearly stated that there should be a progressive escalation in the event a contravention is substantiated. Assuming that the contravention is not likely to cause imminent personal injury or property damage, and there is reasonable evidence which substantiates the complaint and contravention, then management should provide the owner (and tenant, if any) with a warning letter, which outlines the following:
The misconduct of the owner/tenant/guest;
The provision of the condo corporation’s governing documents, which was contravened; and
That any legal costs incurred by the Corporation pertaining to the contravention will be borne by the owner in accordance with the Corporation’s governing documents (assuming this is applicable).
It is vital to write to the owner at every step of the process even if the owner is not residing in the unit. If this is not done, then the condo corporation may be handcuffing itself in the event it wishes to take further enforcement steps at a later date. In accordance with the Act and most condo declarations (and as stated above), owners are responsible for the actions of their tenants.
If the misconduct continues after one or two warning letters from management, then the matter should be referred to the condo corporation’s legal counsel. At that time, another warning letter should be sent by legal counsel and if the condo corporation’s governing documents permit, all legal fees should be charged back to the owner of the unit and collected by way of lien against the unit, if necessary.
If the misconduct continues after sending letters from management and legal counsel, then depending upon the contravention, the condo corporation may:
Initiate mediation and, if necessary, arbitration proceedings; or
Initiate a court application for compliance
Generally speaking, if the owner contravenes the condo corporation’s governing documents, then mediation/arbitration proceedings are appropriate. If the owner is leasing the unit to a tenant and the tenant contravenes the condo corporation’s governing documents or the owner/tenant contravenes the Act, then a court application is appropriate. Boards should consult with their legal counsel when determining the appropriate enforcement mechanism, as there are some exceptions to the foregoing principles.