Tuesday, August 15, 2017

Condo is a single family community housed in a community; NOT an AirBnb

A Condo Building is a combination of many Single Family residences.
NOT a hotel or Bed and Breakfast. It is not a Bnb
Its Not an AirBnb. It is a single family residence
In a recent case, Louiseize v. PCC No. 103, a condominium owner who knowingly breached the “private single-family residence” restriction in the condominium declaration for almost 14 years, was given 9 months to bring his units into compliance with the declaration.
From the time that he bought his units (which were purchased in 2001, 2003 and 2004) they were leased to multiple unrelated tenants and the owner failed to provide the condominium corporation with the names of the persons occupying the units, as required by section 83 of the Condominium Act, 1998 (the “Act”). Although the condominium corporation sent the owner the occasional notice reminding him of the restriction and requesting the names of those occupying the units, the corporation did not take any steps to enforce the declaration until 2013.
This case was originally heard by an arbitrator. After noting that the unit owner had knowingly breached the declaration and that the condominium corporation had for years breached its statutory duty under section 17(3) of the Act to enforce the declaration, the arbitrator gave the unit owner 9 months to bring the units into compliance. The arbitrator found that the the existing tenancies could be terminated with 60 days’ notice and that the units could be readily rented in compliance with the declaration, although this would result in a decreased rent of about $600 per unit per month.
The unit owner appealed the arbitrator’s decision and sought to have the order varied so that he would be allowed 75 months to bring two units into compliance and 55 months to do so for the other unit. The Superior Court of Justice found that the arbitrator had not made any errors in law and that the 9-month time period given by the arbitrator was reasonable. The unit owner did not provide any evidence as to why he needed a period of approximately 5 years to wind down his existing leasing arrangements. In addition, the unit owner had benefited financially by the corporation’s failure to promptly enforce the declaration.
The declaration also contained a non-waiver clause that stated that “the failure to take action to enforce any provision contained in the Act, this declaration . . . irrespective of the number of violations or breaches . . . shall not constitute waiver of the right to do so thereafter, nor be deemed to abrogate or waive such provision.” The unit owner unsuccessfully claimed that this non-waiver clause was contrary to section 17(3) of the Act as it was unreasonable for the corporation to enforce the declaration after acquiescing to the breach for so many years.
While the condominium corporation was ultimately successful in this case, it would have been in a stronger position had there not been such a long delay before it took steps to enforce compliance. When condominium boards become aware of any non-compliance with the condominium documents or the Act they should be taking steps to enforce compliance sooner rather than later.
When you moved in you agreed to abide by the Rules and Regulations of a condominium community. Once Rules are enforced you will also pay the legal fees to comply.

Friday, August 11, 2017

Let's all go topless in the Condo Pool

Sure ...  you're alone. No problem

What if there are other people around.   What if there are kids; its a family pool and It is your condo.

The Criminal Code continues to forbid nudity without a lawful excuse on public property or on private property that is exposed to public view. Historically, municipalities have relied on this clause to prohibit female toplessness. Over the past few decades however Ontarians have successfully contested such rules on the basis of discrimination, since such prohibition only applies to females.
Perhaps the most famous case is the 1996 Jacob’s case, which once and for all, ruled that women in Ontario have the right to bear their breast in public. In this case, a Guelph woman was charged with committing an indecent act. The Court of Appeal applied the community standard of tolerance test and concluded that the act was not done for sexual gratification and did not harm the community. From this point forward, female public toplessness was understood to be authorized in Ontario.
Since the Jacob’s case, a number of Ontario municipal policies have been successfully challenged or modified on the basis of this precedent. In 1997, the city of Cambridge eliminated its toplessness policy after two women were charged with trespassing for swimming topless in protest of the city’s ban. In 2015, the city of Guelph changed its policy after an eight-year-old girl was told by city staff to cover up while she was in a wading pool wearing only a swim bottom. In 2015, there was a similar challenge out of Kitchener, after three sisters were asked to put their shirt back on while riding bikes.

Condominium corporations cannot, in my view, adopt a policy or a rule which is discriminatory.  Any dress code would need to be reasonable, grounded in a bona fide requirement and equally applied to all.
For instance, a rule prohibiting fully-dressed swimming may be found to be reasonable on the basis that fully-clothed swimming may not be hygienic and may actually present a safety risk.  But such dress code restriction would have to be applied to all, without discrimination of age or gender. You could also demand that pool users wear a swim cap.
On the other end of the spectrum, while swimmers cannot commit an indecent act or swim in the nude, both male and female are likely allowed to swim topless at the condo pool. While some may find this conclusion to go against their values or the social norm in Canada, courts have already rejected the argument that female breasts are somehow the object of sexual attraction and desire more than the male chest.  In the Brantford case, her Honour concluded that  “the manner in which the human torso, whether male or female, is perceived from a sexual standpoint is not gender specific. It is entirely dependant on the individuals involved at the relevant time”. … indeed, beauty is in the eyes of the beholder.  http://condoadviser.ca/2017/08/condo-pool-dress-code-the-debate-over-whats-too-much-and-whats-not-enough/condo-law-blog-Ontario
What do you think is fair?


Can you throw out a bad tenant ?

It's like they are deliberately trying to dis incentivise small landlords from investing in Condo Properties?    Then who will?  Landlords are trapped by these changes.  

 The Residential Tenancies Act, 2006 (RTA) was recently amended by the Rental Fairness Act, 2017 to address loopholes or abuses by some “small” landlords under the current RTA. Most of the amendments will take effect on proclamation by Ontario's lieutenant-governor within the next few months. Lawyers who advise small landlords on the operation, purchase or sale of small residential rental properties should ensure their clients are aware of the legislative changes.
Owners of rental units who want to increase the value of their property will seek to raise rental income, as that will greatly enhance the value of the building for sale or financing purposes. However, the RTA prohibits substantial rent increases and termination of tenancies to allow re-rental of apartments at higher rents.
A strategy engaged in by some owners and vendors of small rental properties, including individually rented condominium units, has been to seek termination of tenancy on the grounds that the landlord intends to reside in the rental unit, thereby freeing the unit from rent control so that it can be re-rented at a higher market rent. Other landlords have used the strategy to simply get rid of an unwanted tenant.
The RTA permits termination for “landlord’s own use,” as long as it is a bona fide request and the tenancy itself is not subject to a fixed term. It is the lack of bona fides by some landlords in deploying these strategies that has prompted the legislative amendments. The RTA amendment (to s. 48) states that a minimum of one year’s residential occupancy is required for a landlord (or member of a landlord’s family) who seeks to terminate a tenancy based on use by the landlord or member of the landlord’s family; furthermore, the landlord must pay the vacating tenant compensation of one month's rent.
If, within one year of the tenant vacating the unit, the landlord advertises the unit for rent; advertises the rental unit or the building it is in for sale; enters into a lease with someone other than the former tenant; demolishes the rental unit or the building it is in; or takes any step to convert the use of the rental building or unit it is in, it will be presumed that the landlord gave the notice in bad faith, thus exposing the landlord to fines of up to $50,000 and a payment of compensation to the tenant who vacated. The amendment also prohibits a corporate landlord from giving a “landlord’s own use” notice of termination.
The RTA amendment (to s. 47) requires a landlord to use a written “prescribed” form of lease that must be signed by the landlord and the tenant. Failure to use the prescribed lease and provide a copy of the signed lease to the tenant will entitle the tenant to demand a copy of same within 21 days, failing which the tenant is entitled to withhold a maximum of one month's rent until such time as the prescribed form of lease is provided and presented for signature.
If the landlord fails to provide the prescribed lease within 30 days of the tenant withholding a month's rent, the tenant is not required to repay the sum to the landlord. Upon presentation of the prescribed lease following the demand, it is open to the tenant to reject the lease, regardless of its proposed term, and to give 60 days' notice to terminate the tenancy prior to the end of a rental period.
Another RTA amendment (to s. 134) prohibits a landlord from collecting or attempting to collect from a former tenant of a rental unit any amount of money "purporting to be rent" with respect to any period after the tenancy has terminated and the tenant has vacated the rental unit. In situations where a tenant wishes to “break” a fixed-term lease, a usual tactic is deliberate non-payment of rent or to hold a "lease-breaking party," in order to receive an eviction notice from the landlord. The eviction notice requires the tenant to vacate the unit within a matter of weeks, and if the tenant does so, the tenancy is terminated.
Prior to the RTA amendments, it was common for landlords to demand or formally claim any lost rent pending re-rental of the unit as “damages” for the tenant’s deliberate breach of contract. Now, such a claim is prohibited, and where a landlord makes demand for same, the landlord is also exposed to substantial fines.
The amendments referred to above are three components of the full range of amendments found in the Rental Fairness Act, 2017. However, they are changes that can directly affect the operations of small landlords in particular. The amendments to ss. 47 and 48 are not yet in force, but the s. 134 amendment is currently in force and will affect demands for recovery of damages made after May 30, 2017, or those outstanding in any proceeding after that date.
Joe Hoffer is a partner with Cohen Highley LLP who specializes in residential tenancies law. https://www.thelawyersdaily.ca/articles/4204/advising-landlords-on-traps-in-ontario-s-new-rental-fairness-act

Are you interested to buy or NOW sell off your rental properties?

David Pylyp