Court cases—Renters in condo units

Owners pay when the renter violates the rules
The renter & the bedbugs
Jumping the smoking gun—smoking in the unit
Renter accused of having barking dog

Carleton Condominium Corporation No. 555 v. Guy LagacÚ, Barbara Stinson-Shea and John Bowman Spero
Superior Court of Justice—Ontario
Before: Madam Justice C. D. Aitken
Counsel: James Davidson and Nancy Houle, for the Applicant

Patrick J. Lafrange, for the Respondents, Barbara Stinson-Shea and John Bowman Spero

Guy LagacÚ, Unrepresented
Court File No: 03-CV-24074
Date:  13 April 2004

This court case dealt with the costs that a condo corporation received for a court application against the owners of a condo unit who were renting their unit to a tenant who was, along with his guests, repeatedly violating the Act and the condo corporation’s declaration, bylaws and rules.

Background facts
Commencing in the summer of 1999, Guy LagacÚ engaged in various activities in and around the condo corporation that contravened the Condominium Act, and the condo's Declaration, By-laws and Rules. These activities included:
excessive noise past 11 pm,
littering of the property,
congregating and smoking in the stairwell at the building,
violating the condo's parking rules,
using threatening, abusive and offensive language towards other owners, residents and employees of the property management firm,
engaging in threatening conduct towards other owners, residents and employees of the property management firm
smoking marijuana,
engaging in conduct which necessitated City of Ottawa by-law officer intervention, and
engaging in conduct which necessitated police intervention.

The property manager received numerous verbal and written complaints about LagacÚ’s conduct. Commencing in August 1999, various letters and notices were given to “The Occupants” of the unit, advising them of the complaints and seeking their compliance with condo's Rules and Regulations.

On 17 March 2000, management contacted the owners for the first time, advising them of the numerous complaints that had been received concerning their tenants.  This resulted in their being a site meeting on 06 June 2000, at which time Stinson-Shea, Spero, and the manager met with LagacÚ, reviewed the various complaints with him, and obtained his undertaking to comply with the Condominium’s Rules and Regulations.

On 06 October 2000, management sent a second letter to the owners advising that the problems with their tenants were continuing.

In October 2001, LagacÚ acquired a pit bull dog. On 11 October  2001, management sent a letter to LagacÚ advising that the dog had to be removed from the property immediately.

A copy of this letter was provided to the owner's rental agent. Neither the manager or the rental agent—both who worked for the same property management company—sent a copy of the letter to the owners.

Further complaints regarding LagacÚ resulted in a further letter being sent to him on 31 May 2002. This letter was also copied to the rental agent. The owners never saw this letter.

On 01 January 2003, Megacorp Property Management Inc. took over management of the condo.

In April 2003, the renters were using visitor parking spaces inappropriately. Tickets were issued against LagacÚ. This, in turn, resulted in angry and aggressive confrontations on his part with management.

Megacorp responded on 01 May 2003 with a letter to LagacÚ stating that he could not enter or communicate with Megacorp’s office at any time; instead all further communications had to be through his landlord,

 A copy of this letter was sent to Stinson-Shea and Spero. This was the first time since the 06 October 2000 letter that Stinson-Shea and Spero received notification that their tenant, LagacÚ, was causing problems at the condo.

Stinson-Shea and Spero received a copy of the Application Record for these proceedings in May 2003. They immediately consulted a lawyer. Although they filed an Appearance, they did not contest the condo's Application. Their only concern was the costs which the condo was seeking from them.

The owners argued that, despite the provisions of the condo’s governing documents, they should not have to pay any costs to the condo because they were not given appropriate notice of their tenant’s contraventions of the condominium’s Rules and Regulations. They argued that had they been given appropriate notice, they would have taken steps to correct the situation, and those steps would have been much cheaper and simpler than the court proceedings brought by the corporation

The corporation's responsibilities
Neither the Condominium Act, nor the Declaration or By-laws of CCC 555, explicitly requires the condo to notify unit owners of contraventions of rules by their tenants before the condo seeks to recover from the owners the costs associated with its litigation against tenants.

Nevertheless, the judge found that implied in the Declaration, By-laws and the condo's rules is a duty on the corporation to provide an owner with notice of a tenant’s contraventions before the condo seeks legal costs against the owner for litigation against the tenant brought to enforce compliance with the condo’s governing documents.

If the property manager of the complex does not inform the owner of tenant infractions, how can the owner live up to his or her responsibility to ensure that the tenant abides by condominium rules?

When Megacorp decided to issue an application on behalf of the condo corporation early in May 2003, it knew that no one on behalf of CCC #555 had contacted the owners since May 2002. Various incidents had occurred during the year which would have added fuel to any steps taken by the owners to end their tenancy agreement.

Therefore, had CCC 555 provided reasonable notice to the owners in advance of commencing this litigation, the legal fees associated with this litigation may have been avoided altogether, or could have been significantly reduced.

In the factual circumstances of this case, the judge was not prepared to deny the corporation any costs based on the lack of recent notice to the owners. What she did do, however, was to reduce the costs the corporation could recover.

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Khokhlov v. Metcap Living Management Inc.

Divisional Court File No: 317/12
Himel. Sachs and Hennessy JJ.
Date: 12 December 2013
 
On 31 May 2010, the Landlord and Tenant Board required  Metcap Living Management (the Landlord) to pay an ex-tenant, Andrity Khokhlov, compensation for rent differential after he moved out due to the bedbug infestation in he building.
 
Metcap asked that the part of the order be set aside or alternatively, the matter remitted to the Board for a new hearing.

Factual Background
Andriy Khokhlov moved into unit 204 at 87 Jameson Avenue, Toronto, Ontario on January 1, 2009. Various rental units and common areas within the building became infested with bedbugs and he alerted the landlord about this on 02 December 2009. The landlord hired a pest control company on 08 January 2010. The tenant refused to have his own rental unit treated, as it was not infested at the time. However, the infestation worsened between January and 07 April 2010.

The tenant sent a letter saying he wished to move out due to the infestation. The tenant discovered bedbugs in his own unit on 09 April 2010. He consented to spraying, which was done on 12 & 30 April 2010. The treatment was successful. However, the tenant found that there were bedbugs in the common hallway and he reported this until he moved out on 17 June 2010.

Mr. Khokhlov moved to another apartment where the rent paid under that lease was higher. The tenant applied to the Board for various remedies which included the rent differential.

The board found that the tenant was entitled to an abatement of rent of $35.97 plus $100 for breaches by the landlord for the period 02 December 2009 to 09 April 2010. The Tribunal also found the tenant was entitled to an abatement of $46.30 for the period 09 April 2010 to 30 June 2010 as a result of breaches and the tenant was entitled to be paid the difference in rent payable between what he was paying for the rental unit and the new unit he had moved into for one year, in the amount of $4,096.20.

Analysis
In this case, the Tribunal did make a finding that the landlord breached s.22 of the Residential Tenancies Act when the landlord did not take any steps to respond to the tenant’s complaints concerning bedbugs in the common area on his floor. The Board also made a finding that this conduct induced the tenant to leave the premises.

For these reasons, the appeal is dismissed.
 
Costs
In view of the Bill of Costs submitted, the factors which include the result achieved but also the principle of proportionality, we exercise our discretion and order costs of $5,000 payable by the appellant to the respondent.

What about condos?
So, it is possible that if a tenant sees bedbugs in the hallways, or other common areas, and the condo board does not act in a timely manner to eliminate them, the tenant may have the right to break his lease with the unit owner and move to a different building. The tenant may also be able to claim rent differential if the rent is higher in the new apartment, as long as it is not a better or bigger unit. The tenant may also be able to claim other costs from the condo corporation.

The unit owner may also decide to seek a legal opinion to see if he has a claim against the condo corporation for lost rental income from the condo corporation.

It would be interesting to see how the tenant and the owner would fair at a Landlord and Tenant Board and in court.

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TSCC No. 2032 v Boudair, et al.
Ontario Superior Court of Justice
Court File No: CV-15-541470
Date:  22 January 2016

This stacked townhouse condo corporation near Warden and St. Clair in  Toronto has rules against second smoke entering other units and the landlord gave his new renters a copy of the condo's rules and regulations and also included in the lease that they are forbidden to smoke in the unit.

The tenants smoke in the unit.

The neighbours complain to the manager and board and the corporation informs the landlord, who lives in Brampton, that his tenants are breaking the condo's rules and regulations.

Here is the timeline:
01 Sept 2015 Tenants move in
18 Sept 2015 The corporation tells the owner his tenants are smoking in the unit. He tells his tenants, by text and e-mail, to stop.

Corporation informs the owner they are receiving more complaints. Owner tells tenants to stop. They say they are not smoking in the unit and if the owner will pay 1st & last months rent plus moving costs, they will move out by end of the month.
04 Nov 2015 Corporation sends a demand letter to the owner who informs the tenants that they must stop smoking or will be responsible for the costs.

The corporation continues to receive complaints.
27 Nov 2015 The corporation make an application to Superior Court.
08 Dec 2015 The owner is served. Now the owner sees the evidence that the corporation has against his tenants.
18 Dec 2015 The owner makes an Application for Early Termination of the lease with the Landlord and Tenant Board. The earliest available hearing date before the Landlord and Tenant Board was 03 February 2016.
06 Jan 2016 Court appearance & agreement on orders. The tenants agreed to vacate the unit.
15 Jan 2016 Costs hearing to determine who has to pay and how much.

Costs
The corporation asked for the owner and/or tenants to pay on a substantial indemnity basis $32,976.94, or in the alternative $25,125.00 on a partial indemnity basis.

The judge wrote: "The record is clear that Dong (the owner) did not sit by and do nothing. He was very active in dealing with the tenants once he learned of the existence of the complaints

I order that there shall be no costs of the application as between the applicant and Dong."

The judge also found that: "the applicant jumped the “smoking gun” by moving straight for a compliance order under section 131 of the Act without working with and assisting Dong with his efforts. Prior to the issuance of this application, the tenants were already in negotiations with Dong to move out of the unit and were moving towards that goal."

The judge ordered "the respondents Boudair and Badran (the tenants), on a joint and several basis, to pay (a) the applicant its costs on a partial indemnity basis fixed in the all-inclusive amount of $10,000.00, and (b) Dong his costs on a partial indemnity basis also fixed in the all-inclusive amount of $10,000.00."

Why this case is important
A condo corporation can no longer rely on Section 134.(5) of the Act to collect all of its costs. That is a very important ruling.

Secondly, the courts will upheld a condo corporation's rules and regulations that forbid cigarette smoke infiltrating into other units. This may encourage other condo corporations to adopt similar rules and regulations.

The third lesson is that the condo corporation should attempt to work with the unit owner in getting troublesome tenants evicted from a unit before applying for a compliance order.

Finally, it shows that troublesome tenants may be held responsible to pay both the condo corporation's costs and their landlord's legal costs if they lose a court decision.

Anyone win?
Yes. This was a big win for the  condo corporation. It had its rules and regulations upheld in court and they stopped the cigarette smoke infiltrating into other units.

Collecting its $10,000 from the tenants may be difficult and this judgment may change how they deal with any future tenant-owner issues but they are the clear winners here.

In the whole, all condo corporations in Ontario won. They too can entertain the idea of adopting similar rules and regulations.

Condo owners across the province also won as this is another judgment where the courts refused to allow a condo corporation to recover its costs by putting a lien on an owner's unit.

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TSCC2112 vs Liu Li and Applebaum Daniel
Ontario Superior Court of Justice
Court File No: CV-16-00559131-0000
Before: Justice Stinson



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