There’s a recent ruling by the Ontario Superior Court of Justice between Toronto Standard Condominium Corporation No. 1737, and Farrah Hakim and Jaffar Kayyali, regarding board enforcement of owner parking.
Jaffar and Farrah bought a unit – with titled parking – and proceeded to park, according to by-laws, an overheight vehicle there for 3 years before the board informed them they were in violation. The couple fought the board and demanded the right to continue to park their vehicle in their titled spot. After 3 years of dispute the court ruled that the couple’s claim was invalid and ruled in favour of the board.
It’s important to note – because this comes up ALL (all!) the time with boards I deal with – that the court ruled the board didn’t have to grandfather the vehicle because the board issued and started enforcing the overheight violation on all deliquent owners (there were 7 at that time in violation) in a fair manner.
Many owners often argue that there is a “timeliness” requirement to be caught in their bylaw infraction. That requirement doesn’t exist. A board needs not be omniscient, nor perfect, in their application of the bylaws. They do need to show fairness when enforcing them, and that the board enforces bylaw infractions as they become aware of them. That’s about it.
So, if you’re an owner raging against a board claiming that they “ignored the situation for years” and that should invalidate any restrictions listed in the bylaws, you might not find that a convincing approach to gain favor from a judge.
I’ve had the opportunity, as a board member, to listen to owners indicate why they shouldn’t be fined for violating bylaws. The most common (amongst many) defense against being fined is “but you didn’t enforce the bylaw in these 12 different issues or instances.”
It is a very rare event where a board will use the bylaws to personally target a specific owner. In the vast majority of cases, the board is working as best they can to enforce the bylaws on all owners. Most boards constantly attempt to respond to all the violations that are presented to the board.
This is fine as there isn’t a standard of duty for boards requiring perfect enforcement of the bylaws. The board is required to be neither omniscient regarding the depth of bylaw violations, nor perfect in its application of the bylaws. They are allowed to be reasonably inconsistent. Really!
In the 2011 ruling of Peel Condominium Corporation No. 108 and Donna Young, the Ontario Superior Court of Justice ruled that even though the owner accurately identified many other violations of the condominium bylaws that haven’t been addressed by the board. The court continued that
there has been a degree of selective enforcement by the applicant sufficient to give rise to a concern. However, it does not approach the sort of rampant non-enforcement that has arisen in some cases
There is an interest, in the collective, in having the Declaration enforced, even if some transgressors have been allowed to violate it.
So, highlighting that your neighbours seem to have escaped the gaze of the board and you haven’t will likely prove a poor defence (and in essence an admittance of guilt) to your violation.
By-Laws, Community, Ontario being human, by-laws, condo, condominium, court, Donna Young, enforcement, HOA, ontario, Peel Condominium Corporation No. 108
Ok, normally I laugh at pet services – I find them hysterical. Even though I have two cats, there is only so much pet specialized, pamper pushing, services and goods I can accept with a grain of humility.
But there is one that may help condominiums with pesky poop problems – DNA recording! DNA Pet World Registry through their program PooPrints will hold DNA samples of pets and then match them to the poop scooped remains you email them! Now your board can be sure in fining that poop-and-flee culprit!
By-Laws, Crime, Qwerky Condo News by-laws, condo, condominium, DNA, DNA Pet World Registry, enforcement, fine, pets, poop, strata