Focus: When can court force condo owners to sell?

A home is one’s castle, but even castles have rules.

When a home sits among others in a condominium complex, the rules become even more important and somewhat different than with standalone houses.
“What’s unique about condos, on the one hand, [is] it’s a unit one person owns,” says Joseph Salmon, a litigator and associate in the condo group at Heenan Blaikie LLP.

“Yes, it is your home; however, you’re part of a community.”

While condo boards don’t have the legal authority to evict owners and force them to sell their units, they can ask the courts to intervene in extraordinary circumstances where the behaviour of one person is affecting the entire condo community. But that approach must be a last resort after mediation and other efforts to rectify the situation have failed. “There are decisions where the court will require an owner to sell their unit, but it’s only in the rarest of circumstances” where the unit owner displays extreme behaviour, says Salmon. In that situation, the courts must decide what constitutes extraordinary conduct.

One unit owner’s persistent bootlegging was enough for a judge to make the order to sell last February.

In York Condominium Corporation No. 82 v. Singh, the court had earlier ordered the owners to stop selling alcohol and cigarettes out of their Toronto condo.
When that failed, the corporation brought the owners back to court on a contempt application and accused them of being in breach of the Condominium Act.

“There is every likelihood that the respondents will not comply with any future orders of the court and would take every step to frustrate the carrying out of such orders. In these circumstances, the order should provide for steps that will ensure that the current conduct will be effectively ended and will not be resumed,” wrote Justice James Spence of the Superior Court of Justice.

There were complaints of increased human traffic and disorderly conduct in the common areas of the complex with police called to attend to problems related to activities in the unit on several occasions. The board asked the court to order the Singhs to sell and vacate their unit. In making the order giving them three months to vacate, Spence found there was little likelihood the Singhs would comply with further court orders. He fined Namita Singh $10,000 and her parents, Nutan Singh and Narayan Sundar Singh, $2,500 each.

“In most condominiums, you’re taking people and they’re living very close to each other. There’s not a lot of spatial division,” says Craig Robson, a partner at Robson Carpenter LLP. “You’re living on top of each other to some extent.”

Condo owners, he adds, are very similar to business partners. “The difference is they don’t have the luxury of choosing the partners and there is a tendency for those partners to change.”

The Condominium Act has continued to develop over the years to react to the unique situations presented by condo living. While the court has the authority to order the unit owner to sell, that occurs only in extreme situations when the judge believes the person will repeat the conduct and there are no other options. “The judge has to reach the conclusion that something’s going on that no one has to put up with,” says Robson.

“It’s got to be really, really serious to say, ‘You can’t go home anymore.’”

Often, adds Robson Carpenter associate Meghan MacDonald, the judge will look at past history. A prior court order could well set the tone for what’s to come.

MacDonald and Robson point to Metropolitan Toronto Condominium Corp. No. 747 v. Korolekh in which Justice Michael Code of the Ontario Superior Court of Justice said the facts colluded to create a “perfect storm” illustrating serious and persistent misconduct that resulted in an exceptional impact on the condo community.

The condo board had asked the court to order Natalia Korolekh to sell and vacate her unit over a series of accusations including physical assaults on other residents, mischief to property, racist and homophobic slurs, threats, and using her large and aggressive dog to frighten and intimidate other unit holders and their children.

Korolekh denied the allegations in a brief affidavit. She presented no facts, documents or corroborating evidence to support the denials.

“In all these circumstances, it would be unwise to try to reintegrate Ms. Korolekh into a community that fears her and that she has persistently tried to intimidate. People join condominium corporations voluntarily on the basis that they agree to share certain collective property and to abide by a set of rules and obligations that protect the collectivity. There is no right to continue membership in this corporation or this community, once a clear intention to harm it and a persistent refusal to abide by its rules have been exhibited in the extreme ways seen in this case. Ms. Korolekh has irreparably broken the bond with her community and an effective order cannot be made that would force these parties to now join together again,” wrote Code in his decision ordering Korolekh to vacate and sell her unit and awarding $35,000 in costs to the condo corporation.

Judgments forcing condo owners to sell their units do occur but usually only after the courts have exhausted other efforts.

“It’s always the same thing: bad conduct that’s likely not going to stop,” says Robson.

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