In a recent case, MTCC No. 1328 v. 2145401 Ontario Inc., a condo unit owner was ordered by the Court to allow the condominium corporation access to the unit for the purposes of inspecting and investigating whether there were noises or vibrations emanating from the staircase in the unit that could unreasonably interfere with the use and enjoyment of the unit below.
The occupant of the unit below complained to the board that she was experiencing noise and vibrations in her unit as a result of structural instability of the staircase in the unit above. After two requests were made by the corporation to enter the unit for the purpose of conducting the inspection, the owner issued a notice under the Trespass Act, indicating that access to the unit was prohibited.
The corporation took the position that the refusal to allow it access to the unit was a breach of the corporation’s declaration, as well as a breach of the Condominium Act, 1998 the (“Act”). The corporation claimed that it had a right and duty to enter the unit to determine if the staircase was interfering with the use and enjoyment of the unit below, and to abate any nuisance and carry out any necessary repairs to the staircase if the owner refused to do so.
The owner argued that:
- The corporation’s right to enter the unit only arises in connection with the repair and maintenance of the common elements or property and assets of the corporation or in an emergency situation;
- The request to make the inspection was made in bad faith to pressure the owner to settle an outstanding small claims court action between the corporation and the owner;
- The corporation’s attempt to enforce access was barred by the Statute of Limitations, as complaints about the staircase went back over eight years;
- The corporation’s request for access was not reasonable as the complaints from the occupant of the unit below constituted inadmissible hearsay and there was no direct evidence about an unreasonable amount of noise or vibration;
- The dispute should have been dealt with by mediation and arbitration and not resort to the courts.
The Court rejected the owner’s arguments and granted the order allowing the corporation to enter the unit without interference from the owner. The Court concluded that:
- The corporation’s duties and obligations under sections 17(3) and 119(3) of the Act to enforce compliance with the declaration and the Act extend beyond the common elements and property and assets of the corporation;
- Section 19 of the Act gives the corporation the right to enter a unit to perform its duties and obligations;
- There was no evidence provided to establish that the corporation was acting in bad faith in requesting access to the unit;
- After the complaints were made by the occupant of the unit below the corporation was justified in requesting access so that it could, after making an inspection, determine if the owner was in breach of the Act and the declaration. No determination had been made or could be made without the inspection.
- The corporation was not required to mediate and arbitrate the dispute, as the dispute stemmed from the corporation’s efforts to enter the unit to enforce compliance with the Act.
- There is no limitation period for seeking compliance with the Act, and in any event, the complaints from the occupant of the unit below were ongoing and continuing.
Condominium unit owners need to understand that while they own their own unit, they do not have the same rights and freedoms as owners of freehold property and also have more obligations. Ownership of a condominium unit makes owners part of a condominium community and as such, the rights of individual owners need to be balanced against the interests of the other owners and the condominium community as a whole.
