Court Confirms Condominium Corporation’s Access Rights

In the case of Ron John William Dowdell et al, v. York Condominium Corporation No. 403, the Ontario Superior Court dealt with an owner’s objections to the condominium corporation’s efforts to gain access to the owner’s unit and exclusive-use balcony.

YCC 403 is a 13-storey residential high-rise.  The Applicant in the case owned a penthouse unit with an exclusive-use balcony. In 2002, the condominium corporation installed anchors onto the underside of the balcony (and other penthouse balconies) to allow for more efficient, and less expensive, cleaning and maintenance of the common element windows located below those balconies. (Those underlying windows were not accessible from other balconies.)

The Applicant objected to the condominium corporation gaining access to the Applicant’s unit and to the particular balcony.  Among other things, the Applicant asserted that this access was an unreasonable nuisance (to the Applicant) and was not necessary because the condominium corporation had other reasonable alternatives by which to attend to the cleaning and maintenance of the particular windows.  The Applicant also asserted that the condominium corporation did not need to travel through their unit in order to periodically inspect the particular anchors. The Applicant also argued that the condominium corporation’s right to access a unit or exclusive-use common element was only to permit repair and maintenance to those specific areas (not to other parts of the building).

The Court held that the condominium corporation had the right to enter the Applicant’s unit and exclusive-use balcony for the indicated purposes, pursuant to Section 19 of the Condominium Act. The Court said:

There is no requirement in s. 19 of the Act that the performance of the object or duty or the exercise of the powers of the condominium corporation must be carried out with respect to the particular unit or exclusive use common element being entered.

…

I am satisfied that YCC 403 has not acted capriciously or unreasonably in requiring access to the balcony of PH 1 and balcony anchors on the balcony through the unit owned by the Dowdall(sic) Parties. I accept the submission of YCC 403 that it would be unreasonable to require YCC 403 to incur the additional costs to access the balcony via the exterior of the building. Other unit owners are subject to the same obligation and have complied.

This case shows that condominium corporations have broad rights to gain access to the units and exclusive-use common elements in order to carry out the objects and duties of the condominium corporation.  That said, the access rights must be reasonably exercised, and with reasonable notice to the owner.  [In the case of an emergency, it is often reasonable to gain access without prior notice, and then to provide notice to the owner as soon as reasonably possible thereafter.]  In this case, the Court was satisfied that the condominium corporation’s actions had been reasonable throughout.

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