Real Estate

Condo corporations can access units without owner approval

By Paul Russell, AdvocateDaily.com Contributor

Owners cannot prevent condominium corporation representatives from entering their units if they are fulfilling the corporation’s duties under the Condominium Act and if reasonable advance notice has been given, says Toronto condominium lawyer Armand Conant.

“It’s not uncommon when there’s a complaint — usually about odours or excessive noise emanating from a unit, both of which the corporation is legally required to investigate — that the owner will refuse entry, and say there is no proof that anything improper is happening,” says Conant, senior partner in the Condominium Law Group with Shibley Righton LLP.

He cites a recent Ontario Superior Court of Justice decision, which sets out the responsibilities of both unit owners and corporations with respect to this issue.

Court documents state that a unit owner complained about noise coming from the penthouse above. The sound was believed to be caused by vibrations in a staircase connecting the two floors of the upper unit.

When the condominium corporation's representative requested entry to inspect the staircase, the owner refused, and even obtained a notice under the Trespass to Property Act, barring entry to his unit.

“I’ve never seen an owner do that before in these types of cases,” says Conant, noting the unit owner is a lawyer.

The condominium board took the case to court and the judge granted approval to “enter the unit on one or more occasions in order to inspect and investigate whether there are noises or vibrations emanating from the staircase in the unit that could unreasonably interfere with the use and enjoyment of [the lower unit],” the judgment states.

“I welcome this ruling, as it spells out that condo owners cannot prevent the corporation from entering their unit — provided the board is fulfilling its statutory duties and working on behalf of the entire building,” says Conant. He explains that S. 17 of that Condominium Act states, “The corporation has a duty to control, manage and administer the common elements and the assets of the corporation … [and] to take all reasonable steps to ensure [everyone complies] with this Act.”

In this case, the penthouse owner argued — among other things — that the staircase was not part of the common elements, and therefore, the board did not have the right to demand entry to inspect it.

“The judge rejected that argument, ruling that since this was a noise complaint, and all owners have the right to the quiet enjoyment of their units, the duties and obligations of the corporation extend beyond the common elements,” says Conant.

He says this case provides clear guidance to both unit owners and condominium boards about their rights and responsibilities.

“Owners have to be very careful in refusing entry to their unit because the corporation has the right to investigate if there have been legitimate complaints from other unit owners,” Conant says. “If you still refuse entry, you may be embroiled in some sort of legal proceeding, and you could be responsible for legal costs.”

The right to enter units is not open-ended for condominium corporations, he adds, as there has to be a complaint or an issue dealing with the common elements, such as the air conditioning or heating units.

Conant says this decision lays out seven points to clarify each side's rights and responsibilities, which ultimately will help foster better relations between condo corporations and owners. He summarizes them this way:

  1. A corporation’s duties extend to the units, not just common elements and assets.
  2. In order to fulfil those duties, the corporation has the right to enter units, especially if there is a complaint from other owners.
  3. There has to be reasonable notice given about when the entry will be made.
  4. If a legitimate complaint is made against a unit owner, the board has the right to request entry without any supporting assessment of the complaint.
  5. The business judgment rule was reaffirmed, stipulating the court will not overrule a condo board decision unless it was made capriciously or unreasonably.
  6. If there has been a violation of the Condominium Act, a board can go directly to court instead of mediation and arbitration, even if the claims by the corporation include breach of the declaration, bylaw or rules.
  7. For a breach of the Act, the two-year limitation period does not apply.

“This judge reaffirmed what condominium lawyers have been saying all along,” says Conant. “It was great to see this ruling and have this issue articulated so clearly.”

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