Court boots out unit owner for "extreme behaviour"
The forced sale of a condo unit is among the most drastic remedies a court can order on an application to compel an owner's compliance with the Condo Act or with the declaration, by-laws or rules of a condominium corporation. This kind of remedy is granted only in extremely rare circumstances. This is the story of one of those cases.
In MTCC 747 v. Korolekh, a condo corporation sought a court order directing an owner to sell and vacate her unit or, in the alternative, to change her behaviour, so as to comply with to section 117 of the Condominium Act. That section provides:
“No person shall 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.”
The condo alleged that an owner had breached this section and was responsible for:
- physical assaults on other unit owners;
- acts of mischief against their property;
- racist and homophobic slurs and threats repeatedly made against other unit holders;
- playing extremely loud music at night;
- watching and besetting other unit holders; and
- using her large and aggressive dog to frighten and intimidate other unit holders and their children, as well as failing to clean up the dog’s feces.
The condo further alleged that, prior to this owner’s arrival in 2005, the courtyard on the property was a vibrant gathering place for other residents but had become desolate and deserted due, in large part, to the owner’s activities.
The owner did not directly respond to these allegations in the materials she filed at court. The court called the response a “bald conclusory denial” of the condo’s detailed and voluminous allegations and said:
[10] What is remarkable about the Respondent’s brief affidavit is that it never addresses any of the specific incidents that are put against her. Her position appears to be that they are all inventions. No facts or documents and no corroborating evidence are set out in the Respondent’s Record in support of her broad denials.
[11] The Applicant’s lengthy two volume record is made up of nine affidavits from various unit holders, from neighbours who are not unit holders and from the property manager. They paint a consistent picture of the Respondent’s behavior and of her impact on this small community. The affidavits are specific and detailed, they repeatedly corroborate each other and they are often supported by contemporaneous documentation.
After considering the evidence, the court ultimately ordered the owner to list and sell her unit within three months of service of the court order, and barred her from ever residing at the condo as owner or tenant, among other things. The court was persuaded to grant this extraordinary remedy for the following reasons, as set out in the decision:
· The community in question is relatively small, made up of thirty units located in two storey townhouses;
· The units all share a single courtyard which is their common backyard;
· The courtyard was a vibrant communal centre, prior to the owner’s arrival, and she has effectively destroyed its utility;
· The owner’s behavior is extreme in a number of senses. It includes physical violence, use of a large aggressive dog to frighten and intimidate, extraordinary verbal abuse of residents, interference with enjoyment of property as well as actual damage to property. This broad array of misconduct is carried out in a devious, persistent and vindictive manner. It has been continuous throughout the year leading up to the present Application;
· The owner was ordered by the Board of Directors to “cease” her misconduct, by letter dated May 13, 2009. She was also ordered to “remove your dog from the property”. She was warned that the corporation was “closely monitoring your behavior” and that court proceedings would be commenced, at considerable cost, if she persisted. Instead of being chastened by this warning, and taking the opportunity to comply with her statutory duties, she continued with the same course of conduct. The assault on a neighbour and the killing of a neighbour’s garden, as observed by a community member, both post-date the May 2009 warning letter and the Board’s order to comply;
· The launching of the present Application has not led to any offer or undertaking by the owner to change her ways. She is clearly “in denial”, and cannot begin to reform, given her broad and absolute refusal to acknowledge any wrongdoing; and
· Given the breadth of her misconduct, any compliance order would involve the Court in managing every aspect of the owner’s life from her manner of speech, her music, her dog, her gestures and her menacing presence in the courtyard, as well as the more obvious need to enjoin any physical assaults or mischief to property. Such an order may be necessary in the interim, pending a sale of the owner’s unit, but the Court ought not to become involved in any long term attempt to oversee, manage and reform the broad array of extreme behavior at issue in this case.
This case touches on several interesting aspects of an enforcement matter and is definitely a suggested read. One notable aspect is that the case provides a good example of the type of evidentiary balance and analysis the Court will undertake to reach a conclusion in an enforcement matter. The level of detail in the condo’s affidavits was commendable. The allegations presented in the evidence are detailed, explicit and, as such, not suitable for a family blog such as ours. Viewer discretion is advised!
We often advise our clients’ managers and boards to obtain detailed and, most importantly, corroborated accounts of breaches and incidents before they proceed against an owner for compliance orders. Under the Act, enforcement actions must be reasonable in the circumstances and context of the breach. Each case will be decided on its own facts.
Read the decision, decide for yourself whether the corporation’s steps were reasonable and let us know what you think!
As 2009 drifts into the history books, we look back at some of the notable condo law decisions made by Ontario courts and tribunals in the year gone by.