The Motorcycles are Parked; Who Let the Cat Out?! Is it Reasonable for a Condo to Prohibit This?
The case of Lambton Condominium Corporation No. 39 v. Kulahoglu, 2023 ONCAT 20 dealt with three issues:
- whether the Respondent failed to comply with the rule prohibiting motorcycles in parking spaces and/or on driveways and condominium property;
- whether the Respondent failed to comply with the rule requiring cats to be kept indoors; and
- whether the Applicant was entitled to reimbursement of the filing fees paid.
The Applicant, Lambton Condominium Corporation No.39 (“LCC 39”) claimed that the Respondent, unit owner Engin Kulahoglu (“Mr. Kulahoglu”) failed to comply with the provisions of the governing documents related to motorcycles and cats.
The Respondent claimed that the parking rule LCC 39 was trying to enforce was meant only for commercial motorcycles. Additionally, Mr. Kulahoglu claimed he tried to keep his cat indoors, but he was unsuccessful. He also claimed to have seen other cats roaming on the condominium property.
When conducting an analysis of the facts brought forward by both parties, the Tribunal member reviewed the condominium’s governing documents.
Firstly, LCC39 argued the owner’s conduct was prohibited by Rule 33 and Articles Four and Five in the condominium’s declaration. Rule 33 prohibited commercial trucks, motor bikes, campers, and other vehicles from being parked on the property. The owner argued that the comma, or lack thereof, was the cause of the misinterpretation. He argued the term “commercial” applied to the entire list of vehicles, so his motorcycle was not prohibited since it was not a commercial motorcycle. The Tribunal member was not persuaded by Mr. Kulahoglu’s arguments. The rule was clear that the vehicles listed were prohibited. Accordingly, the Tribunal ordered the owner not to park his motorbike on the property.
LCC39 also requested the Tribunal find that the motorcycle was not allowed on the property because it created unnecessary noise, which was prohibited by Rule 10. The Tribunal member was not prepared to do so because there was no evidence that the motorcycle was a nuisance. As such, the owner was entitled to continue to drive his motorcycle on the property.
The second issue considered was with respect to Mr. Kulahoglu’s cat. LCC 39 relied upon Rule 16 which reads “Cats are allowed but must be kept indoors”. The Tribunal member reviewed s.17(3) of the Act, which requires the condominium to enforce its rules, and s.119(1), which requires owners to comply with the rules. In this case, the Tribunal member felt there was sufficient evidence of the cat frequently roaming freely outdoors and no evidence of uneven enforcement by LCC 39. Consequently, the owner was in breach of Rule 16. He was ordered to keep his cat indoors.
Thus, as LCC 39 was successful on both issues, the Tribunal awarded the owner to pay LCC 39 the filing fees of $275.
As a condominium corporation bringing forward an application, it is crucial to establish that the unit owner is not in compliance with the Act, Declaration and/or Rules and provide strong evidence to support same. Here, the condominium corporation was able to obtain the result they had hoped for by providing evidence of non-compliance by the owner. On the other hand, the owner suggested the condominium was unevenly applying its rules without providing any evidence to support it, so it was not surprising the Tribunal member did not find in their favour in this regard.
It is interesting how the Tribunal member did not mention sections of the Act which pertain to Rules in the decision. Specifically, section 58 states:
58 (1) The board may make, amend or repeal rules under this section respecting the use of the units, the common elements or the assets, if any, of the corporation to,
(a) promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or
(b) prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation. 2015, c. 28, Sched. 1, s. 54 (1).
This case is one that has created some debate in our office. Some lawyers argue it is important that the Tribunal refer to the Act to justify their decisions and the relief sought by the applicants. For instance, were the rules in this case reasonable? Were the rules in this case designed to promote safety, security or welfare or prevent unreasonable interference with the use and enjoyment of the property? This group argues the Tribunal’s decisions should specifically refer to the requirements in the Act to enact a valid rule when making decisions based upon rules.
On the other hand, some of the lawyers argue it is less important for the Tribunal to refer to the Act in each decision so long as the Act was considered in making the decision. This group also argues that the rules in this case were reasonable. The Tribunal has found rules prohibiting motorcycles being parked on the property and cats being outdoors as reasonable and consistent with s.58(1)(b) as these activities are likely to be considered as a nuisance. S.58(1)(b) is often used to prohibit activities that could create an unreasonable interference with the use and enjoyment of the property by others.
This is a hot topic that is often debated in our office and the industry in general. What are your thoughts? Should the Tribunal always include an analysis of s.58(1) in its decisions about rules?
This case stresses the importance of a unit owner complying with the condominium’s governing documents. Thus, from a unit owners’ perspective, it is important to read the governing documents and ensure you are not violating any of the provisions of the said documents and the Act. Also, if there are provisions which you wish to challenge or you feel they are unclear, the Act sets out ways for owners to seek amendments to rules.
From my perspective, condominium corporations and unit owners should work together to ensure that both parties are on the same page. If the governing documents are challenged, the Act will be reviewed to ensure the challenged documents are valid and enforceable. Previous court and tribunal decisions should also be reviewed, especially to see trends over time, to help guide condominiums in determining if their rules are reasonable and enforceable.