An important court case
Toronto Realty Blog  archives/5584
David Fleming
29 August 2011

At one point last year, I was involved in a minor dispute at one of my condominiums, which shall remain nameless, over the usage of my common elements.

I decided that in no way was I going to adhere to the condominium board’s “request,” which was actually a demand, and that their request was completely unnecessary and without merit.

I did a lot of research over a period of one week, and the most important piece of information I found had to do with a court case from two years ago involving a condominium board and a 73-year-old man.

In December of 2007, a man named Jim McMahon installed a hot tub on his townhouse back patio, and connected the hot tub to the electrical panel in his basement.

The condominium corporation soon made an application seeking permanent removal of the hot tub, and McMahon refused.

This case was tried in court, and McMahon was the victor, but the condominium board took the case to the Ontario Court of Appeals where they again were defeated.

There were many different elements to this case, and the point of this blog post is not to go through them all. But there was one finding by the courts that caught my attention:

A condominium rule is not enforceable if a board does not regularly enforce the rule, or capriciously enforces the rule, so that the unit owner has a reasonable expectation that the board would not enforce the rule against him: Wentworth Condominium Corp. No. 198 v. McMahon (2009).

This is incredibly important, and I suggest that all condominium owners take note.

Let me dumb this down one step further: A rule is not a rule if it is not enforced.

Think of all the rules and regulations that are embedded within a condominium corporation’s declaration, and now think of how difficult it must be for every property manager, board member, concierge, and security guard to recall them.

Let’s say, for example, that your condominium declaration notes, “All window coverings in the building shall be white in colour.”

If you happen to have black curtains, and one day the property manager says, “According to Section 24.8 of the condominium declaration, you are hereby notified that your curtains must be removed,” then you can’t really argue.

It’s in the rules & regulations, right?

But if you’ve been living there for six years and you’ve had black curtains the whole time, and if 50% of residents in the building building have beige, gold, black, blue, red, amber, mustard, polka-dot, and a host of other colours for their curtains, then it could be argued that this rule has not been regularly enforced.

More to the point, if the property manager and/or the board of directors has never made a request for you to change the colour of your window coverings in six years, then you have a reasonable expectation that the rule won’t be enforced.

Lastly, if you’re the only person whom the board is asking to remove their window coverings, then it could be argued that the rule is being capriciously enforced.

As I said – a rule is not a rule if it is not regularly enforced.

I don’t want to get into specifics about the issue that I had, but I was given a notice eleven months after a decision was made by the board, asking me to make a change to my common elements. I argued that since this rule had never been enforced before, and since it took one year from the date of the board’s decision for the property manager to take action, then it further demonstrates the lack of enforcement of this rule.

I cited Wentworth Condominium Corp. No 198 v. McMahon 2009, and I went through that condominium’s declaration and rules & regulations looking for rules that weren’t enforced.

Would you believe me if I said that I found about a dozen rules that aren’t regularly enforced?

I found a rule pertaining to the usage of underground parking spaces.  We all know that you aren’t allowed to store anything in that space other than your car, motorcycle, or in some cases a bicycle, but many people store winter tires, hockey bags, etc.  Well I cited this rule and the fact that one particular owner in our building has had winter tires for his luxury car sitting on the ground for three years.

There was also a rule requiring any person under the age of 16 to be accompanied by an adult when swimming in the pool.  Well show me one single day of the week when there aren’t kids splashing around in that pool while their parents are upstairs watching Jeopardy.

Clearly, these rules were not being enforced.

I cited the rule about the white window coverings, rules about visitor parking passes, rooftop terrace access, booking of the moving elevator, and the list goes on and on.

I wasn’t trying to be a jerk, it’s just that I wanted my way (which was not unreasonable in the slightest) and I would pick apart the entire Declaration if I had to do so.

I tried to demonstrate a pattern of rules in the building not being enforced, whether these were every day rules or completely insignificant rules, and in effect show that if a condominium is not enforcing all the rules, then they cannot enforce one rule selectively.

The rule that I was protesting was something that had “apparently” been in place but never enforced before since I had owned there.

Here is where the board of directors, on behalf of the condominium corporation, could draw up an argument about the rule being for the good of the residents.  That might ultimately take precedence over whether or not a rule is being enforced.

But eventually, the property manager and the board backed off, and order (as I saw it) was restored.

I’m sharing this with my readers and fellow condo owners not to be a sh!t disturber, but rather because quite often a new property manager or a new board member might try to “shake things up” by disturbing the natural order of things.

“Leave well enough, alone” is a great phrase, and it rings true in an area where a bunch of strangers co-habitate and form a legal partnership.

I’ve heard of many instances of a new security company, new property manager, or a re-vamped board of directors taking over and changing things seemingly for the sake of doing so, and I want condo-owners to know that they’re not powerless.

I’m sure that to raise issue with a condo corporation’s actions, many condo-owners would rather write a pleasant letter to the board of directors, but ultimately that may not work.

If you have to result to more direct tactics, then use Wentworth Condominium Corp. No 198 v. McMahaon 1999 to demonstrate to your condo board that they have hundreds of rules that aren’t being enforced and if they’d better think long and hard about opening Pandora’s box.

I think half of my readers might agree with me, and half might not.

What CondoMadness thinks:
I would be very careful in acting as my own lawyer in such a situation. I also don't think it is wise to threaten your manager and/or board by showing them court cases as they may turn to their lawyer and before you know it, you may on your way to racking up some very expensive legal bills.

Just because this worked for David Fleming, doesn't mean it will work for you.

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