skip to main content

Guelph 519 837 2100Fergus/Elora 519 843 1960| Toll Free 1 800 746 0685

Mar 22, 2019
Services: Condominium Law

Rights of Entry: Is A Man’s Condo His Castle?

Metropolitan Toronto Condominium Corp. 1328 v. 2145401 Ont. Inc. & Starkman, 2019 ONSC 733

 

Introduction:

The proverb “[a] man’s home is his castle” has been used in common parlance for so long that it appears to be the basis for our understanding of private property. Despite this, such sentiment does not always hold true, particularly when it concerns ownership of a condominium unit. As a unit owner discovered in Metropolitan Toronto Condominium Corporation No. 1328 v. 2145401 Ontario Inc., and Starkman, 2019 ONSC 733, a condominium corporation has the right, and the duty, to enter into an owner’s unit to investigate complaints and ensure compliance.

 

Facts:

In MTCC 1328 v. Starkman the unit owner renovated the stairs in the unit. As a result, the Condominium received a number of complaints regarding noise and vibrations emanating into the unit below. The Board of Directors took these complaints seriously and had concerns over the structural integrity of the renovations. Pursuant to section 19 of the Condominium Act, 1998 (the “Act”), and the provisions of the Declaration, a condominium may enter a unit at any reasonable time to perform its objects and duties. Notice was provided to the owner that entry was required to investigate the complaints and inspect the stairs. The owner refused, claiming entry is only permissible in relation to the corporation’s maintenance and repair obligations and that because the stairs formed part of the unit, and not the common elements, no entry would be provided. When a second notice was sent, the unit owner issued a Notice of Trespass under the Trespass to Property Act. The Condominium was left with no choice but to bring an application to Ontario’s Superior Court of Justice seeking the owner’s compliance with the Act and permit entry.

The Court found that the Act places a duty on boards to manage the property and assets of the corporation; this includes investigating complaints and a corresponding duty to ensure all occupants comply with the Act, the declaration, the by-laws and the rules. The rights of entry prescribed by section 19 are designed to facilitate boards in the undertaking of such duties. In order to make a proper determination of whether the noise complaints were grounded and whether the renovations complied with the Declaration, entry was required.

The Court iterated that when a condominium receives complaints, such complaints trigger the duty to investigate. It matters not that the complaints are justified at the time as that can only be determined after a proper investigation. In this case, these duties include ensuring that the unit is not being occupied in a manner contrary to the Act or Declaration or in a manner that unreasonably interferes with the use or enjoyment of the property by others and that may affect the structural integrity of the unit or appurtenant common elements. Section 19 of the Act permits entry for precisely these purposes.

 

Bottom Line:

The right of a condominium to enter the units to ensure compliance with the Act, the declaration, by-laws and rules is a powerful right, one confirmed by the courts; however, it is not absolute. When a board is considering entering a unit to ensure compliance, undertake an investigation or do an inspection, it should be remembered that there must be a reason connected to the duties of the corporation and that reasonable notice to the owner must be provided. The receipt of complaints regarding noise or disturbances may provide the reason, but the corresponding notice must be sufficient. In this case, 48 hours prior to entry was found to meet that threshold. A man’s home remains his castle, but the drawbridge must be lowered for condominium boards… with notice.

 

Written by Christopher Mendes, edited by Jonathan Pettit & Robert Mullin.

The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.