Inconsistent Bylaw Enforcement will Not Get You Off The Hook For Your Own Violation

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

and

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.

Condominium Can Not Limit Access to Pool Based On Age

I find some condominium boards draft by-laws that are pointlessly restrictive. These, to name a few, include (quoting from one of my own bylaws):

“No snake, spider, reptile, fowl or livestock will be approved [for residence]”

“use his balcony … flower pots planted with living plants (no silk, artificial or plastic plants except artificial cedars are allowed) … are permitted”

Regarding BBQs: “which if covered, must be covered with a suitable barbeque cover that is in good condition”

“All dogs and cats must be carried on Common Property”

I often wonder how these would be, or have been enforced – if ever. On both boards I’ve served on, we’ve never enforced or even attempted to determine if these, or similar, rules are contravened.  Some seem petty – blocking the ownership of a pet iguana – and more so, I don’t think even enforceable if a board tries to act upon it.

The rule for nothing artificial on balconies except “artificial cedars” seems suspect – it seems to be an attempt to allow Christians to have Christmas trees on their balconies and patios. Either that or the original drafter had a fetish for specifically shaped and coloured plastic flora.

The kicker to all this is the statement in the bylaws that the above and all the other (and there are a lot – just the “owner cannot” section appears to be more than 100 items including subsections) of bylaws have the following purpose (iii) to develop a sense of community.

Forcing neighbours to say hello to each other, hold the elevator doors, offer assistance with carrying groceries, and forcing them to volunteer on committees – that develops a sense of community. Creating arbitrary rules does not create community; it creates norms of behaviour which are completely different. As well, norms fail to allow change and growth in a community. Norms are awesome at attempting to create an environment that is only welcome to a single homogenous group.

Earlier this year, the Human Rights Tribunal of Ontario found two condominium corporations (who jointly manage a shared outdoor pool) had gone too far in their rules. At issue was (1) the blocking of children under 2, and those in diapers, from entering the pool, and (2) limited subset of the pool hours that those 16 and under were able to use the pool.

The tribunal found the rules were immediately unenforceable and to be stricken from the bylaws -the rules provided no bona fide safety improvements, nor were they reasonable. There was an additional $10,000 judgement against the corporations as well.

And that brings me back to creating a sense of community. Condominiums need to look at community as a two way street. Creating a long shopping list of rules can establish a framework of reasonable limitations – but that’s all. When the framework allows the owners to express, live, and share a common housing connection in non-harmful, non-evasive ways, the condominium is a much better place to live.

And had the corporations with the pool looked at their rules as a mechanism to build community, they would have long ago removed the age limitations and kept themselves out of trouble. And indeed, it is not just the board at fault for having those rules, but they are at fault for establishing and condoning an atmosphere that didn’t build community. The ruling mentions that the owners took a vote on changing the rules to make them more inclusive, and when they voted the changes down “the audience cheered.” It’s also noted the boards had a Summer BBQ, which specified “Adult Residents Only!”

That’s a failure of the boards to look at building community, inclusiveness, and positive common experience. They should start working on that. Pronto.

PS. Is my Hello-Kitty BBQ Cover “suitable”?