In a recent Condominium Authority Tribunal (CAT) decision, Simcoe Condominium Corporation No. 104 v. Leary, a rule prohibiting the parking of a licensed commercial vehicle on the condominium property and which prohibited advertisements or signs affixed to a vehicle, were found to be unenforceable.
SCC 104 commenced the application before the Tribunal to enforce its rule against a unit owner and their tenants. The tenant’s truck was a personal vehicle which was used for work purposes and contained signage and advertising.
The Tribunal, in determining whether the rule were enforceable, looked at the requirements of Section 58 of the Condominium Act (the ” Act”) and reviewed the two criteria set out in Section 58(1):
- Does the rule promote the safety, security or welfare of the owners and of the property and assets? or
- Does the rule prevent unreasonable interference with the use and enjoyment of the units, the common elements or assets of the corporation?
SCC 104’s position was that the condo community was an adult lifestyle community located around a golf course, with the look and feel of a “park like” setting. The rule was implemented to ensure consistency in the look of the community.
The unit owner and the tenants, took the position that the rule out of step with today’s work realities and does not promote the safety or security of the residents. They also distinguished their situation from other communities which may have underground garages and overhead clearance issues and also that in this community there are freestanding units with each unit having its own driveway.
The Tribunal found that there was no safety, security or welfare risk and in determining whether there was unreasonable interference, stated that “some of the factors that may be considered are the severity of the interference, the character of the neighbourhood, the impact of the interference, and whether or not the community should be expected to tolerate the interference under the circumstances.”
Although the Tribunal acknowledged that the rule is to promote “consistency” in the appearance of the community and to safe guard a particular type of aesthetic (the park like setting), this is only one factor to be considered and found that in this case, “the impact or interference is trivial in nature” and one that “the community should be expected to tolerate.”
The Tribunal did acknowledge that there may be instances where commercial vehicles and advertising /signs on a vehicle may cause more than a trivial interference and could be unreasonable due to safety, size and maintenance issues or other factors.
The Tribunal ordered that SCC 104 refrain from enforcing the rule that prohibited the tenant from parking its commercial vehicle and a vehicle with signage and advertising on the common elements and exclusive use areas.
Important takeaway:
Most general rules for corporations contain restrictions on the parking of certain types of vehicles. It may be a good time to review commercial parking rules in light of this decision and determine whether the rules meet the criteria under Section 58(1) of the Act. Some things to consider when reviewing parking rules:
- Does prohibiting all commercial vehicles make sense for your community?
- Should the size of the vehicle or the type of commercial vehicle be considered?
- Where would a commercial vehicle be parked? If it is a community with individual driveways and an underground garage, should these be treated differently?
