Entry into units

Owner has to let maintenance men in
Owner must allow entry for fire inspections
A lack of co-operation proves expensive
Owner wanted to be home during entry


MTCC No. 179 v. Chow, 2012

Court file No: CV-11-425761
Ontario Superior Court of Justice
24 January 2012
Justice Glenn A. Hainey

Endorsement to costs
The condo took the couple to court to force them to allow the corporation to make quarterly fire safety inspections of their condominium.

The issue at this hearing was costs. The condo was seeking their full legal costs.

The owners submitted that their financial situation makes it impossible for them to satisfy a substantial costs order. They provided the judge with financial information demonstrating that monthly net income is less than $100 more than their monthly fixed expenses.

The judge decided that the condominium corporation should receive full costs for the expenses in compelling the respondents to comply with their fire safety obligations.

The judge carefully reviewed the applicant’s costs outline and was of the view that it was fair and reasonable under the circumstances and, accordingly, the condo was awarded costs on a full indemnity basis of $12,000, payable by the owners.

The amount was to be added to the common expenses for the respondent’s condominium unit and was payable over a four-year period which should result in an increase in the respondents monthly common expenses of approximately $250.

There are two issues of importance. One, the condo corporation has the right to enter owners' units to perform certain duties and if the owners' refuse, the corporation can take them to court to gain entry and to recover their legal costs. The second point is that this can prove to be very expensive for the uncooperative owners.

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235 Grandravine Drive Inc. v. Tereshko, 2015                 
Ontario Superior Court of Justice
Court File No: CV-13-475635
Date: 20 March 2015
Justice Carol J. Brown

Defendant unrepresented

The plaintiff, (a co-op residential tower), was wholly successful in its action to enforce its rights pursuant to the Co-ownership Agreement dated October 26, 1990. The Corporation has a duty to enforce compliance with the Corporation's Articles, Rules, Bylaws and Co-ownership Agreement, and, in this case, did so as regards non-compliance with the Fire Inspection Order, with which the defendant failed to comply and which posed a documented health and safety risk to the other co-owners and the building.

Pursuant to the provisions of the Co-ownership Agreement, in the event of a default, such as the failure to comply with the Fire Inspection Order in this case, the co-owner shall pay to the Corporation on or before the fifth day after request, all losses, liabilities and reasonable-in-house or other costs incurred by the Corporation, including all lawyers' accounts (determined as between solicitor and his own client).

Based on this provision of the Co-ownership Agreement, the plaintiff seeks its costs and disbursements inclusive of HST on a full indemnity basis in the amount of $33,592.34. The other co-owners should not be responsible for or bear the cost of the defendant's failure to comply with his obligations under the Co-ownership Agreement.

Taking into account the factors to be considered in awarding costs, as set forth at Rule 57.01 of the Rules of Civil Procedure, as well as the relevant provisions of the Co-ownership Agreement regarding costs set forth above, I award the plaintiff its costs on a full indemnity basis in the amount of $33,592.34.

I believe that this was a hoarding issue that the owner would not, or could not, clean up. The court ordered the owner to pay $13,000 in cleaning costs in addition to the legal fees.

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YRCC No. 922 v. Frank Lu et al

Ontario Superior Court of Justice
Court file No: CV-15-012249-00
Released: 15 April 2016
Madam Justice C.A. Gilmore

The condo corporation applied for a declaration that the respondents have breached section 117 and 119 of The Condominium Act, 1998, by failing to permit the corporation to enter Mr. Lu’s townhouse unit to carry out repairs required as a result of flooding in the unit, and an order permitting the corporation to enter the unit as necessary to:
(a)
inspect the unit and common elements and determine the repairs required as a result of flooding in the unit, and;
(b)
to carry out the required repairs to the unit and common elements.

The owner went to great lengths to prevent entry, prevented repairs from being done and then slowed down and dragged out the court application. Why? Hard to say.

The condo corporation was successful in it's application.

Costs
"While it is true that the Act provides for substantial indemnity costs to be paid to ensure that compliant condominium owners are not made to pay for others who do not comply, it is often hard to justify the amount of costs sought given the actual amounts at stake.

However, in this case, if Mr. Lu was as amenable to YRCC 922 entering his unit to inspect and repair as he led this court to believe on April 5, 2016, the question begs as to why this has not occurred in the 17 months since the last request for entry was made by the condominium?  If he was as co-operative as he would have this court believe, the repairs would have been effected long ago and this application entirely unnecessary.

In the circumstances I find that the respondents should be responsible for costs in the amount of $12,000, payable immediately."

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Elena Balland v YCC No. 201
Ontario Superior Court of Justice—Divisional Court
Divisional Court File No: 51/16
Released: 08 April 2016
Justices: Dambrot, Stewart, Thorburn

This is a case where an owner appealed a cost award of $9,344 and won.

It started on 16 October 2014 with the corporation requesting entry to her unit so they could cut a hole in her bathroom ceiling to examine the common elements.

The owner made it clear that she would permit access but wished to be present during any inspection and repair work as she had bad experiences in the past when contractors came into her unit.
 
On 23 October 2014 representatives came to her unit to conduct the inspection but she was at work so no inspection was carried out.

Instead of communicating further with the owner to explain why access was required, the corporation filed a Notice of Application on 18 November 2014, to obtain a court order giving them permission to enter the owner's unit.

When the contractor cut the hole in the ceiling, he left a mess in her bathroom, damaged a door and said that he will leave the hole as is because a piece of plumbing piping needed to replaced.

The court ruled that the board should have done more to work out a solution with the owner instead of engaging premature legal proceedings.


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