Unlike a homeowner, a condominium unit owner accepts certain restrictions on their freedom. A condo corporation’s declaration, bylaws and rules restrict what a unit owner can do, even within the walls of their unit. The board of directors is under an obligation to enforce these restrictions.
Sometimes, this obligation causes a problem for a board. It may suspect a unit owner is breaking the declaration, bylaws or rules but is unable to prove it without entering the owner’s unit.
In such a case, can a board enter a unit to obtain the necessary proof?
The Ontario Condominium Act does give a condo corporation the right, under certain circumstances, to enter a unit. Sec. 19 of the Act states, “On giving reasonable notice, the corporation or a person authorized by the corporation may enter a unit or a part of the common elements of which an owner has exclusive use at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation.” However, entering an owner’s unit to investigate alleged rule-breaking is not in compliance with the Act.
The Act defines a corporation’s “objects” as managing the property and assets of the corporation on behalf of the owners. A corporation’s “duties” are to control, manage and administer the common elements and assets. Therefore, a corporation only has the right to enter a unit to control, manage or administer its property or assets – for example, to carry out maintenance or repair.
Entering a unit for any other purpose – such as investigating an alleged rule violation – may result in an owner threatening to call the police or suing the corporation for trespassing.
If a representative of the corporation is in a unit carrying out legitimate maintenance and happens to notice a violation, the board can take action. But the corporation cannot use a questionable maintenance issue as a pretext to gain entry for the real purpose of taking a look around.
What, then, can a board do once it has reason to believe something nefarious is going on inside a unit?
In extreme cases, if a board has evidence of a possible violation that is likely to damage the common elements or cause injury, Sec. 117 of the Act arguably empowers a corporation to enter a unit to stop the threat. In such a case, it’s recommended that the corporation’s lawyer be called prior to attempting entry.
In a non-emergency situation, the board should carefully collect and preserve any evidence suggesting a violation. For example, the board should ensure any security camera footage isn’t automatically deleted. This evidence could be critical to a future enforcement action or to defend against an angry owner’s legal threats.
Once ample evidence has been collected, the board should send a letter to the unit owner that outlines the allegations and evidence, and reminds the owner of their duty to comply. Often, once a unit owner learns the corporation is aware of their behaviour, the owner will stop.
If the unit owner does not comply, the corporation should speak with its lawyer. If the circumstantial evidence of a violation is strong, it may be enough to commence the enforcement process – even without gaining access to the unit.
To avoid this dilemma, it’s recommended that boards take the preemptive step of amending the bylaws to give the corporation the right, under certain circumstances, to enter a unit. This provision provides that once a corporation has determined an owner is breaching the Act, declaration, bylaws and/or rules, a representative of the corporation can enter the unit and remedy the breach.
Of course, even with this bylaw in place, the corporation is still under an obligation to act reasonably and provide notice to the unit owner (except in the case of an emergency).
Denise Lash is chair of Heenan Blaikie’s condominium group and practices in the area of real estate with a concentration on condominium law. Keir Wilmut is a litigation associate with the firm’s condominium group.
An interesting article. Do the authors intend that a condo corporation’s unilateral unit entry could be legally consistent with Section 19 if some sort of “power” could be created on-site by some sort of bylaw enacted under permissible headings of the Condominium Act 1998’s bylaw Sections 56 and 57? What would those headings be? This bylaw created “power” would be distinct from lawful corporation activity involving emergency responses, section 12(2) dominant easements and from lawful rarities where a declaration might have lawfully shifted unit maintenance onto the corporation itself in section 91(d). Quite an article.
Hi, I was on vacation out of province for month. The board decided to have a fire inspection. They dropped an envelope in my mail box after I had already gone. My friend who watched my apartment brought the envelop and left it for me on the table. She would not read my mail . We have a condo web site and normally any event is announced, but not this time. I also provided the board with my cell phone number. It would not be a problem for me to arrange the access to my unit as my key has my friend. When I came back I found a note from the board with invoice to pay for the opening of the door lock to let inspector in. My question is can the board enter without my consent? Shall the board ensure first that the note actually reached the owner of the unit? Can the board charge me? Shall I do anything against the board? Thank you very much for your response.
Short answers to your questions are, yes, no, yes, no.
Long answer:
The management can enter without your consent as long as they have provided you with a 24-hr notice. Such notice is intended to alert the resident of entry into the unit by staff or trades people. If you were not home at that time then it shouldn’t matter to you anyway. The corporation is not obligated to ensure you read the notice. It will usually get slipped under the door and no one can force you to read it if you decide to just step on it and never pick it up or are away for prolonged periods of time.
Changing the lock of the main door is against the Declaration and the corporation can absolutely charge you the cost of replacing the lock and there is nothing you can do about that.
I have a condo in a resort. The condo corporation runs a hotel but only rents it’s own units. I rent my own. The condo owner has said they will refuse entry to the property to any of my guests unless they are immediate family.
What legal grounds to I have for an emergency injunction to prevent them carrying out their threat?
I signed a lease of my condo for rental on April 1. However, I found out that the manager gave keys to the future tenant to move in on March 25. I have called to complain and the manager is uncooperative and divuging what is going on. I suspect she was bribed by the tenant so to stiff me 5 days of rent.
I then received a very harsh letter from the in house attorney that the manager was doing an “inspection”. However, I have no violations and my unit is absolutely beautifully maintained. Furthermore I was not given any notice by the manager or the tenant, it was my good neighbor that told me stranger were entering my unit. Is this legal, do I have a case of illegal entry and trespassing?
Thank you kindly
The property manager and a security guard entered my unit when I was sleeping without calling or even knocking on the door. There was no emergency nor a repair to be done. I was quite startled to be awoken from a sleep to find 2 uninvited persons standing in my unit. They had notified me that they were coming for an inspection regarding the placement of my furniture claiming that firefighters could not walk around. They had come for the same reason twice before and arrived at 0900hrs. This time I had waited until 0944hrs and they did not show up or call. At 1044hrs they just entered without any warning. I work 16hr shifts at all different times. I feel that they are trespassing and invading my privacy and just plain harassing me. The property manager was making insulting remarks and threatening to call a lawyer that “would cost me alot of money”. My furniture had already been adequately rearranged by the second visit and now she was complaining because my carpets needed vacuuming. I want to go to the police and have them charged.