Two recent CAT decisions highlight scenarios affecting recovery of costs in rule enforcement scenarios:
In TSCC 1767 v. Ahmed et al., the condo repeatedly assured the unit owner it would not seek costs against the owner for his tenants permitting their dog to urinate and defecate on a balcony and failing to clean it up. The owner relied on those statements. The CAT determined that the condo should be bound by its commitments made to the unit owner. Costs were ordered against only the tenants for the costs to clean up the balcony, the condo’s enforcement costs, and the fees paid to the Tribunal.
Takeaway – Your word is your bond. While a condo board may express sympathy for an owner because of a misbehaving tenant, unit owners should be held responsible for their tenant’s conduct from the outset and communications with owners should reflect this. Any statements absolving the owner of his/her responsibility may come back to haunt the condo and limit cost recovery. While the condo obtained a cost award against the tenants in the above case, it would’ve been ideal if costs were awarded against the owner as well and secured by a registered condo lien.
In TSCC 2745 v. Isla et al., a condo sought a compliance order because a tenant’s truck protruded outside the boundaries of the parking unit. By the time of the hearing, the tenant had resolved the issue and the truck was parked almost within the boundary line. Although compliance wasn’t perfect, the CAT determined the vehicle did not interfere with the drive aisle or pose a danger and no compliance order was granted. The CAT cautioned that this matter could’ve been resolved with “both a bit of patience and cooperation” by the condo. The unit owner was ordered to reimburse the condo for its nominal filing fee.
Takeaway – Be reasonable. Condos are entitled and obliged to seek compliance with its governing document but must be reasonable in its enforcement actions. Steps must be appropriate and proportionate to the type of rule violation. Condos should provide fair warning to owners with a reasonable time to comply, especially when there is no urgency or danger to persons or property. Practice patience and cooperation. Reasonable steps will likely help assure a successful result and a more complete cost recovery.