From condoadviser.ca – |
The Condo Tribunal had to recently deal with a case where a condo owner interfered with the snow removal operations by parking his car (on his driveway) in such a way as to impede the snow removal operations. This owner also inappropriately interacted with management and a director of the corporation.
Sounds familiar? Read on to see what is acceptable and what is not.
This condo complex is comprised of townhouses, each with a short driveway leading to individual garages attached to them. This driveway (which can act as a parking space) is part of the exclusive use common element for each specific unit.
The specific unit involved in this case was at the end of a row, adjacent to a grassy area. Over the years, that area was used to pile snow during the winters. The owner of the unit asked that the corporation no longer use that area to store snow, raising safety concerns and risks of damage to his vehicle. He was also concerned with the presence of water near his foundation when the snow melted in the spring.
In the fall of 2021, the owner asked again if snow was going to be stored on the patch of grass. He was concerned with snow equipment being dangerously close to his vehicle. The corporation suggested that he park his car in his garage if he was concerned about it. Rather than follow this advice, the owner actually started to park his car as close as possible to the area being accessed in order to impede the corporation’s ability to store snow on the grassy area.
The condo’s lawyer warned the owner of this “inappropriate parking” and demanded that the car be park so as to not go past the end of the unit’s brick wall (ie, more centered on the driveway). They claimed the legal cost of the letter and warned of additional cost if the behaviour continued and resulted in extra cost to the condo.
Eventually the corporation found another place to pile the snow but at an additional costs of $3,390.
Questions before the tribunal
A couple of questions were raised before the Condo Tribunal, including:
- whether the owner was breaching the corporation’s parking rules;
- whether the owner’s improper parking constituted nuisance;
- whether the owner’s inappropriate interactions constituted nuisance.
The corporation had two rules on parking:
- One prevented the obstruction of sidewalks, walkways, or driveways used in common;
- The other prevented vehicles from being park on common elements other than driveway and parking space.
The CAT concluded that, while the method of parking was problematic for snow removal operations, it was not in breach of any of the rules.
The corporation had to provisions dealing with nuisance:
- The declaration prohibited any condition or activity that would constitute nuisance – but did not define the term “nuisance”;
- A rule prohibited owners from doing anything in their unit that may obstruct or interfere with the rights of other owners to their comfort and quiet enjoyment of their units or common elements.
The corporation argued that the improper parking was disruptive to other residents and impeded the corporation’s ability to fulfill its duties of maintenance and repairs.
Since nuisance was not defined in the governing documents, the Tribunal looked at the common law definition of it, noting that nuisance required an interference that is substantial and not trivial.
The tribunal concluded that parking the vehicle in such a way as to impede snow removal/storage was a substantial and unreasonable interference with the corporation’s ability to carry out its maintenance obligations. When the owner failed to abide by the request to cease this disruption, it was forced to haul the snow elsewhere at significant cost to the owners. This was not a “trivial” disturbance.
Of interest, the Tribunal had to rule on other misbehaviour by this owner such as kicking a pilon (set on his own driveway) onto the street and other unpleasant interaction with management and a board member.
Some of these interactions included exchanges with management which left her “feeling uncomfortable” and a confrontation with a director while she was walking her cat on common property. This interaction was said to include harassing and threatening comments. The police was called but the director in question stated not to have feel threatened by it.
At the end of the day, the Tribunal concluded that, while this behaviour may have been “annoying, unpleasant or obnoxious”, in the absence of a definition of nuisance in the governing documents, this behaviour did not amount to a nuisance.
Moreover, the behaviour was trivial (the kicking of the pilon) and the unpleasant interactions did not amount to a substantial or unreasonable interference with an owner’s right to the comfort and quiet enjoyment of the common elements. This conclusion was reached, in part, because the behaviour was intermittent, not consistent and not part of a regular pattern. [A bit of an odd message: it’s ok to be a jerk if you only do it once in a while…]
Perhaps the most important takeaway is to have a look at your existing rules to ensure that they adequately define “nuisance”. Without proper verbiage, the Condo Tribunal may lack the required tools to assist your corporation when an owner’s behaviour gets out of hand. You may also want to include language preventing harassment and other similar behaviour.
As for behaviour that does not “align with our Canadian values” (as some were referred to be in this case): patience, tact and diplomacy is key. It seems there is an unfortunate expectation that being on the board or being a manager comes with “annoying, unpleasant and obnoxious” customers. Having said that, not all is fair in love and war. Do also know where and how to draw a red line in the sand.
You can read the case here.