It’s move-in day to your first downtown condo. As an avid cyclist, you’re excited to be steps from Toronto’s bike lanes and paths. Your excitement quickly fades when you learn that all your condo’s bike racks are occupied and that your condo’s rules prohibit bikes in the elevators.
Determined to find a way to store your bike, you head into the garage and spot a few rusty, dust-collecting bikes that don’t appear to have been used in years.
Can your Condo Corporation dispose of property that appears to be abandoned?
First, your Corporation should review any agreement that may be in place with the owner, as well as the Corporation’s rules. If an agreement exists, it may contain relevant provisions. Alternatively, if there is no agreement or rule that contemplates this issue, your Corporation should then consider whether the property has been abandoned.
The Court of Appeal recently defined abandonment as “a giving up, a total desertion, and absolute relinquishment” of property. If property has been abandoned, the previous owner will be unable to either assert any of the rights once held in the property, or claim any damages against the Corporation. In legal terms, abandonment acts as a defence to the tort of conversion, which is the “wrongful interference with the goods of another.” Accordingly, your Corporation can seize or dispose of abandoned property.
So, how does your Corporation know if a bike is abandoned?
When your Corporation reasonably believes that a bike is abandoned, it should send a notice to the bike owner. The notice should advise the owner that: (1) the Corporation believes the item to be abandoned; and (2) a response is required within a specified time period. The notice should also specify the consequences of the owner’s failure to respond. Courts have noted that an owner’s lack of response to a notice can be indicative of abandonment (Nash v. Chan).
Your Corporation must prove that it is more likely than not that the owner intended to abandon the property. A court will base its decision on a variety of factors, including the passage of time and the conduct of the owner.
A Corporation may rely on abandonment for all kinds of property stored upon the common elements. However, the circumstances of each case must be carefully considered before a Corporation seizes or disposes of any property, as the determination of abandonment will be fact and case-specific.
