Hoarding in condo units: Aftermath of 200 Wellesley fire
Condominium corporations now have another option for addressing the difficult and uncomfortable subject of hoarding in multi-unit residential buildings.
Earlier this month, Ontario’s Office of the Fire Marshall (OFM) released its report on a large fire at an apartment building at 200 Wellesley Street, Toronto in September 2010. Fighting this blaze was especially difficult because the unit at issue was occupied by a hoarder and jam-packed with junk. The fire forced the evacuation of 1,200 people, some for many weeks, and injured 17.
Because hoarding was a deep-rooted problem at this particular address, the 200 Wellesley fire brought the dangers of hoarding into the public spotlight. The Toronto Star reports that fire crews mopping up found another 15 units in the same complex with hoarding problems, and that another hoarder’s unit had gone up in flames a year earlier.
In its report, the OFM laid the blame on a tossed cigarette landing on a balcony full of combustible materials but focused on the inherent dangers of hoarding, saying:
The tremendous growth and spread of the fire was a result of the excessive amount of combustible materials stored on the balcony and in the suite of origin. Therefore, the OFM is urging landlords and property owners to inform local fire departments of instances of hoarding where they believe it poses a fire safety risk. Local fire departments can help to address these instances of hoarding through the Ontario Fire Code and their partnerships with other community mental health and supporting agencies.
In the context of this large multi-unit dwelling, the intensity of the fire hampered firefighting efforts of Toronto Fire Services and created a significant risk to first responders and those attempting to evacuate the building. This was due to the excessive amount of materials stored on the balcony, which well exceeded the height of the safety railing, and combustible materials that were stored at a significant depth throughout the apartment. Given the amount of these combustible materials, the dwelling was no longer being used for its intended purpose and could have physically trapped an individual inside.
In a further quote, the OFM said:
Ontarians are urged to contact their local fire departments if they are aware of dwellings where an excessive amount of combustible materials are present that may pose a fire safety risk.
For condo corporations, this report and advice to call local authorities brings welcome news. Rather than expend time and effort proving in a court of law that an occupant is a hoarder creating an unsafe condition, a simpler option may be to follow the OFM’s invitation to lodge a complaint with the local fire department. If the fire department is satisfied that the situation is unsafe, it can order the unit owner to alleviate the dangerous situation. Regardless of whether the problem is solved with an order, the fire department can also lay charges under the Fire Protection and Prevention Act.
Enlisting the local fire department to deal with a hoarder may at first seem like a slam dunk for condos, but three uncertainties remain:
1. Will the fire department actually investigate a complaint and give an order?
2. Could the order require the condo to do the work for the unit owner or make the condo and its board liable to face charges?
3. Could the fire department find additional violations around the building and issue orders or lay charges against the condo for these other problems?
These three questions should be considered before making a complaint about hoarding in a condo unit. Here's why:
First: Will the fire department investigate?
It is a well-known fact that most city agencies shy away from problems in condominium buildings, citing that the condo corporation is responsible for dealing with most issues. For this reason, property managers and condo boards are rightly skeptical about whether local fire departments will actually do anything in response to reports of hoarding in condominium units. Only time will tell, but we would think that municipalities may be subject to lawsuits for damages where fire departments fail to respond appropriately to cogent, written reports of hoarding and demonstrable fire safety risks. The OFM report is convincing evidence that fire departments have a duty to act when given reliable information of a problem.
Second: Could the fire department name the condo in the work order?
Given the established practices of most city departments, it is fair to assume that the fire department will order not only the unit owner, but also the condominium corporation and even the management company to rectify a hoarding situation. This “shotgun approach” to municipal by-law enforcement is common, and involves naming every person in sight, even where it’s incorrect to do so. City officials typically fail to appreciate that while the condominium and its manager have the legal right to undertake work in a unit (as per Condo Act, section 92), that work cannot practically be done without the owner’s cooperation or a court order. Regardless, if the condo or manager is named in the work order, those parties are liable to be charged if the required work is not performed. Realistically, then, condo boards should not make complaints about hoarding unless they are ready to undertake the necessary work. Boards might try to minimize the chance of being named in the order by including in their written complaints the applicable provisions in their declaration that allocate the respective obligations of the corporation and owners when it comes to maintenance and repair of units. The better approach is to be prepared to be named as a party in the work order and to get the lawyers involved to get access to the unit to perform the work.
Third: Might additional violations be found?
It is common for a complaint to the city about an owner’s infraction of a local ordinance to give rise to work orders or charges against the condo and sometimes its manager for unrelated violations observed by the inspector. The inspector will write up any and all violations in sight, even those unrelated to the complaint. For this reason, condo boards should make sure that all aspects of their fire safety systems and plans in relation to the common elements are in top shape before making a complaint of hoarding in a unit.
Once these three issues are considered, filing a report with the local fire department may be an effective way to start dealing with known hoarding situations. To maximize the odds of it being favourably received by the fire department, have the draft report reviewed for completeness by your condo's lawyer. Additionally, given that mental health issues are likely at play in hoarding situations, obtaining legal advice at an early stage will increase the odds of obtaining a more predictable and economical positive result.
We are interested to hear whether boards and managers are having success with this approach or whether additional issues arise. As always, readers are invited to send us their comments, experiences, questions or suggestions using the comment form below.
