Real Estate

How to deal with problem condo residents: Berkovitz

By Rob Lamberti, AdvocateDaily.com Contributor

An amendment to Ontario’s Condominium Act outlining the legal test for requiring an owner to sell their unit, won’t make the process of removing an owner any easier for condo corporations, says Toronto condominium lawyer Joel Berkovitz.

The proposed s. 135.1 will clarify the extraordinary situations where a condo corporation can ask a court to intervene and force an owner to vacate their unit — for example, where an owner's behaviour is threatening or dangerous, says Berkovitz, a lawyer with Shibley Righton LLP.

The section allows a court to order someone to vacate a condo unit if the person poses a serious risk to someone’s health and safety, has damaged property or assets of the corporation, or if “the person is unsuited” for the communal use and occupation of the property — and no other order will be adequate to enforce compliance.

He tells AdvocateDaily.com that while a condo corporation doesn’t have the ability to force a sale without a court order, the section could be used if no other order of compliance is adequate. But he's not sure if adding the clause to the Act makes much difference, as the “jurisprudence was already fairly clear that this was a last-resort remedy,” and that it’s "only likely to be applied to those who don’t have it in them to live with others.”

“To remove an owner is extremely difficult,” Berkovitz says. “It’s only been done in a handful of cases in Ontario in the last couple of decades. It requires that the owner be violent, threatening, or repetitively engaged in very serious behaviour. Only then is a court going to say, ‘You must sell this unit.’”

He cites an Ontario Superior Court case where the requirements for a court order were clear. The court found a unit owner’s behaviour breached s. 117 of the Act by being intimidating, threatening, and verbally and physically abusive to the personnel of the condo corporation. In another ruling, a condo owner — whose behaviour was described by a Superior Court judge as “appalling” — was ordered to “vacate her unit within 30 days and to sell it within 90 days, failing which the applicant may sell the unit for her and recoup the costs of doing so from the proceeds of sale.”

Both cases reflect the high threshold the courts demand before ordering a unit owner to sell, Berkovitz says. He describes it as one of the most difficult orders to get from a court.

“It’s an extreme remedy to force someone to vacate and sell a piece of property,” Berkovitz says.

The new section in the Act provides clarity to the requirements, he says

“This is the standard you have to meet, and it helps that it’s codified,” says Berkovitz.

“If you live in a condo in Ontario, you are required to comply with the Condominium Act and with the applicable condo corporation’s bylaws,” he says. “That applies to everybody.”

Berkovitz says not all bad behaviour requires removing the offending unit owner or tenant. There are other methods. For example, financial penalties can be added to the monthly fees to cover the repair costs of any damage done.

“We can directly charge the owner for damages and recover that sum via a lien against the unit,” he says.

But the process is different for tenants of a condo, Berkovitz says.

“If anyone causes an issue, the owner is responsible for that person,” he says.

Berkovitz says the process to evict a tenant is a more straightforward matter. If someone doesn’t respond to multiple requests to comply with condo bylaws, corporations can use a two-step process to evict the person.

The first step is to obtain a compliance order from a court demanding the tenant follow the condo documents, he explains.

“If you get that order and the person breaches it, then you can get an order for eviction,” says Berkovitz, noting that it could be a “fairly lengthy process.”

He says lawyers usually get involved after the condo manager has made repeated attempts to solve the matter.

“We send a letter saying this is your final warning, and if there are any further incidents, we will seek an order,” Berkovitz says. “Only if there are further incidents do lawyers go to court because there are costs involved, which get charged back the unit owner.

“It’s best to try to resolve the issue without going to court,” he says. “But sometimes, we’re not left with any options.”

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