Pursuant to Section 19 of the Condominium Act, 1998 (the “Act”), condominiums have the right to enter condominium units (and exclusive-use common elements) to perform various objects and duties upon reasonable notice.
The typical examples of the need for such access include repairing a common element riser, which is only accessible from the unit, performing fire inspections of the unit’s fire alarm, or performing repair work to the unit that the owner was required to perform but did not within a reasonable period of time under Section 92 of the Act.
But what happens when the purpose of access is less clear or more unusual?
Specifically, what if access is required through a residential unit to perform common element maintenance or repairs to the building in general? The most common example of this in my experience over the years relates to access to roof anchors, which are located on an exclusive-use common element balcony or terrace. In this scenario, a condominium would seek access to the residential unit to travel through the unit to the balcony in order to perform work.
Usually, the roof anchors are accessed in order for the condominium to perform window washing or other general maintenance or repairs to the common elements. That is, the work to be performed by the condominium really has nothing to do with the applicable residential unit itself.
In such a situation, a residential unit owner may be understandably concerned about contractors and equipment moving through the unit, both as an inconvenience or allegedly a nuisance. The residential owner often argues that the condominium can access the balcony from the exterior (via swing stage or other means).
Another example of such unit access may be staging work on a terrace in order to maintain or repair the exterior of the building, and where access to the terrace might only reasonably be available through the unit.
Such situations in the past have created headaches for condominiums and their boards and managers. Having a dispute with an owner over access for such purposes can result in delays, legal and other costs.
Fortunately, this very situation was addressed last year in the decision of the Ontario Superior Court in Ron John William Dowdell et al. v. York Condominium Corporation No. 403 (the Dowdell case).
The basic facts of the Dowdell case are the same as the balcony anchor scenario discussed above. In brief, the owner was refusing access through the unit to the exclusive-use balcony and the roof anchors situated there. The purpose of entry included required periodic inspections of the anchors, together with using the anchors to facilitate a swing stage to clean windows below the applicable residential unit.
Both the owner and the condominium brought competing applications to the Superior Court against each other. Dowdell claimed in part that the condominium was acting oppressively in demanding access through the unit, and the condominium sought orders requiring Dowdell to provide access through the unit. The owners’ application included a claim for damages based on oppression, loss of enjoyment of the unit and breach of the right of privacy.
The owners’ primary argument was that access to the balcony/roof anchors could be arranged entirely from the exterior of the building, and not requiring access through the unit. The owners alleged that the access to the unit was disruptive and a nuisance and unreasonably affected them.
Ultimately, the court sided with the condominium corporation and made orders that the owners provide access through the unit. The evidence as accepted by the application judge included that the cost of arranging for a swing stage entirely from the exterior, rather than access to the unit, involved considerable cost and that it was reasonable for the condominium to insist upon access through the unit.
The key to the decision in my view is the concept of ‘reasonableness’. That is, the condominium was entitled to perform its duties in a reasonable manner, and that was the case here.
We would expect that this decision would apply to other types of ‘unusual’ access to a unit, including access for example to stage maintenance/repair work on an exclusive-use common element terrace.
Of course, facts will differ from case to case, and there appears to be a balancing of the owners’ right to minimal disturbance versus the condominium’s right to perform its maintenance/repair work in a manner that is reasonable and not excessively costly compared to any alternatives.
Also worth noting is that many condominiums may have provisions in the declaration specific to particular units and their exclusive-use balconies that reference the existence of roof/balcony anchors or other services and explicitly provide for a right of entry via the residential unit. In those cases, the access is more obvious and less of a question. Unfortunately, not all condominiums have such a provision in their declarations, including in the Dowdell case.
These issues of unit access for general common element repairs were not previously addressed in any detail in the jurisprudence, and was an open question and an ongoing source of disputes among condominiums and owners.
Thankfully, the Superior Court has provided clarity on the issue as discussed above which should be of assistance to condominiums and owners. As we all know, condominiums can often be a fertile ground for many disputes. This decision should help reduce at least one type of dispute which, while not a ‘monumental’ step forward, is nonetheless significant and welcome.
David Thiel is a partner in the condominium law group at Fogler, Rubinoff LLP. He can be contacted at dthiel@foglers.com or 416.941.8815.
