Bug Infested, Smelly, Condo Unit As A Neighbour?
It seems like a nightmare scenario. You have saved for a down payment and purchased a suitable condo. A little while later, new neighbours move in. Over time, you start to notice foul odours emanating from their unit. The stench increases. Cockroaches appear in your unit. You suspect that these unwanted pests are visiting from next door. However, when your condo board communicates with the neighbours, they refuse to cooperate by either cleaning or allowing fumigation of their unit. Your enjoyment of your home is significantly decreased.
Recently, the Ontario Superior Court was asked to resolve a similar situation. In York Condominium Corporation No. 41 v Schnieder, the condo board obtained a court order requiring the unitholders to clean their apartment and to allow de-infestation of a severe roach problem. The unitholders did allow one treatment to kill the roaches but then refused to cooperate or to permit the condo board to have access to the unit for follow-up treatment. The board returned to court to obtain a non-compliance order against the unitholders.
The unitholder protested claiming that the smells emanated from the unit across the hall and that the roach problem wasn't severe, despite pictures to the contrary. The unitholder further insisted that he be allowed to dictate the type of cleaning that would be done to eliminate the problem.
The court agreed with the board that this situation posed a health risk and dangerous condition to other unitholders but gave the unitholder one last chance to cooperate with the de-infestation procedures and cleaning. The full cost of the procedures were to be added to the common expenses of the unit as these costs should not be visited on other unitholders.
If the unitholder failed to cooperate, the board could return to court to seek a further non-compliance order which would force the unitholders to vacate the unit and allow the sale of the unit.
Similarly, in Carleton Condominium Corporation No. 25 v. Eagan, a condo board asserted that an extremely cluttered unit with a bedbug infestation imposed a hazard to health and safety. Previous attempts to conduct fire safety inspections were unsuccessful due to clutter in the unit. Attempts to resolve the bedbug infestation issues were similarly unsuccessful due to the owners refusal to prepare the unit for treatment. The bedbugs had spread to a neighbouring unit.
The court found the unitholder to be in breach of his agreement with the condominium corporation to repair and maintain the unit. As a remedy, the court ordered the unitholder to cooperate with the de-infestion the unit. If the owner refused to cooperate, the corporation was given authority to remove, store and discard and objects preventing the treatment. This remedy is draconian in that it gives the condo board the authority to remove and discard the unitholder's property in order to facilitate the de-infestation.
Full costs of the de-infestation treatment were to be charged to the unitholder. However, the court did not award full legal costs to the condo corporation. Rather, it followed the normal procedure of reducing costs to the level of substantial indemnity.
The Lesson: Diligence is key when dealing with this type of situation. While the court will order a remedy to deal with health risks and dangerous situations, it likely will give the unitholder at least one further chances to comply. I suggest requesting that the court add language to the order setting deadlines for compliance and providing consequences for noncompliance as they did in the latter case dealing with bedbugs. This way the offending unitholder fully understands the consequence of non-compliance.
York Condominium Corporation No. 41 v Schnieder, 2015 ONSC 3919 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc3919/2015onsc3919.pdf
Carleton Condominium Corporation No. 25 v. Eagan, 2015 ONSC 4383 http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4353/2015onsc4353.pdf
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