The Relationship Between Condominium Corporations and Tenants
In the case of McKeen v. HSCC 647, the condominium corporation needed to gain access to the units for mandatory annual fire-safety inspections. On two occasions, the condominium corporation attempted to gain access to the unit (by giving notice to the tenant) and the tenant of the unit refused entry. The tenant was seriously immuno-compromised, and was therefore understandably concerned about personal safety during the pandemic.
The condominium corporation applied to Court under Section 134 of the Condominium Act, seeking an order to permit the required entry. In the Court process, the tenant alleged that the Landlord and Tenant Board had exclusive authority over the dispute. Among other things, the tenant argued that the condominium corporation was a “joint landlord” (and that the dispute between the parties therefore had to be decided by the L&T Board).
The Court decided to adjourn the Court process, pending a determination of the jurisdiction issue by the L&T Board.
The L&T Board concluded that the condominium corporation was not a landlord, except in cases where a condominium corporation actually enters into a lease with a tenant.
Nevertheless, the L&T Board went on to say that the condominium corporation could not enforce its rights by way of application under the Condominium Act without first giving the landlord an opportunity to arrange for the tenant’s compliance under the Residential Tenancies Act (including by way of application to the L&T Board if necessary). The decision says:
It follows that the condominium corporation may apply to the courts for appropriate relief if, and only after, the Landlords have demonstrated that they are unwilling or unable to take the reasonable steps necessary to obtain a remedy for the claim under the RTA.
In my respectful view, this is not correct in law.
It’s true that the Residential Tenancies Act includes the following provision:
If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.
However, at least on the facts of this case, there is no conflict between the Residential Tenancies Act and the Condominium Act.
The Residential Tenancies Act governs the relationship between a residential landlord and a tenant. The Condominium Act governs the relationship between owners and occupants of condominium units, and the condominium corporation.
When someone enters into occupancy of a condominium unit (as opposed to another type of property), they enter into a special relationship with that condominium community. In effect, they agree to accept various rights and obligations, quite separate and apart from the rights of the landlord under residential tenancies law. This special relationship arises because Ontario law recognizes the importance of the close relationship between members of a condominium community. The actions of one could have a serious impact upon other members of the community.
Among other things:
Pursuant to Section 83 of the Condominium Act, the occupant receives copies of the condominium’s governing documents. And pursuant to Section 119(1) of the Condominium Act, the occupant is bound to comply with the Condominium Act and with those governing documents. Failing such, the condominium corporation has very clear rights, under Section 134 of the Condominium Act, to apply for a compliance order against the occupant and, in the event of further non-compliance, to even apply for termination of the tenancy.
Again, these rights are entirely separate from (and in fact are in addition to) landlord and tenant law. There are many, many examples of cases where condominium corporations have made application for compliance orders – against tenants – as described above.
There are Court decisions confirming that a condominium corporation may be best advised, depending upon the circumstances, to first give the landlord a reasonable opportunity to “stimulate compliance” by a non-compliant tenant, in accordance with the landlord’s obligations under Section 119(2) of the Condominium Act, if the condominium corporation hopes to recover costs against the landlord. But this has never been expressed as a “pre-condition” to the corporation’s clear and separate enforcement rights against the tenant.
Returning then to the McKeen case:
It’s true that condominium corporations have certain very specific rights to enter the units (which rights are in addition to the entry rights of the landlord). There is no inconsistency between the two. A tenant – like all other persons– has relationships with many different parties, not just with their landlord. And tenants most certainly have a relationship with their condominium community as confirmed in the above provisions of the Condominium Act.
If the tenant had a proper need for accommodation (for instance, a need to be moved somewhere else during the condominium corporation’s entry to the unit), those are issues that could properly be considered and decided by the Court hearing the matter. Deferring to the rights of the landlord (which could in some cases be very different) is not the answer and any related delay might one day create serious risks for the other members of a condominium community.
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