Parking Is Not Storage

In Middlesex Condominium Corporation No. 169 v. Doherty et al., the CAT held that the condominium corporation’s declaration did not allow the parking units to be used for storage. The Tribunal said that a “plain reading” of the relevant provision of the declaration was that the parking units could only be used for parking motor vehicles (which did not include storage).

In the Middlesex case, 30 years previously the Respondent owners had installed garage doors on their parking units, as allowed by the condominium’s rules. The Respondents then used the parking units to park and for storage (which was supposedly also permitted by the Rules). In 2022, an inspector from the fire department stated that any “cabinets, shelving, tires, appliances, and storage” violated the Ontario Fire Code and ordered such items to be removed.  After this, the condominium corporation sent a notice to owners requiring the storage items to be removed from all parking units, and also took steps to repeal the particular Rule.

In its decision, the Tribunal clarified that the Applicant’s enforcement of the declaration was not dependent on the fire department order. This is because all owners have an explicit statutory obligation to comply with the declaration (and the condominium corporation has an obligation to enforce the declaration) under subsection 17(3) of the Condominium Act. Therefore, the owners were required to comply with the Declaration.

The Respondents argued that the condominium corporation should be obligated to permit the storage to continue, given that the condominium corporation’s long-standing rule permitted the storage and given the lengthy history (during which the condominium corporation had permitted the storage).   However, the Tribunal pointed to the non-waiver clause in the declaration, stating that past non-enforcement does not prevent current enforcement of the declaration.

The Tribunal ruled in favor of the condominium corporation and issued an order requiring the Respondents to remove all stored items within 60 days. The Tribunal held that the condominium corporation had a right to give reasonable notice to require removal of the storage items and (if not removed) to store them securely until the owners could retrieve them. The Respondents would pay the costs of the removal and storage.

This is a helpful decision on owners’ obligations to comply with a declaration under the Condominium Act and the importance of non-waiver clauses in declarations.

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