So, you want to evict a tenant
from your condo?
As promised in a previous blog entry, we are back to discuss the amendments to the Condominium Act, 1998 (the “Act”) under Bill 106 regarding the permanent removal of persons from the condominium.
As any condominium board member or property manager knows, unruly unit owners and tenants are not uncommon. Unfortunately, sometimes the only way to resolve non-compliant, bad and/or dangerous behaviour is to commence an Application in the Superior Court. On occasion, the behaviour of a person has been so bad that the court will actually issue an order removing him or her permanently from the property. This is not a very common result, but our firm has been involved in one such case.
The court’s authority to issue such an order arises from the broad language in the Act as it exists today (prior to the coming into force of the amendments under Bill 106), which grants the court the discretion to make any order it deems “proper” (per section 135(3)), or “fair and equitable in the circumstances” (per section 134(3)).
This power is not absolute. Although the Act currently contains no statutory restriction in relation to an order removing a unit owner or a member of an owner’s household permanently from the property, it does limit the court’s authority relating to termination of tenancies to just two circumstances: where it is satisfied that, either, (a) the tenant is in contravention of a previous compliance order (meaning the corporation must seek two separate orders, and the first must have been disobeyed by the tenant) or (b) the tenant has failed to pay his or her rent directly to the condominium corporation after the corporation has instructed the tenant to do so in order to pay the unit owner’s arrears of common expenses (per section 87 of the Act). (Of course, in regard to a tenancy, it would be most ideal for the landlord unit owner to bring an application at the Landlord and Tenant Board to evict his or her own tenant; however, some unit owners are reluctant to do so, and either fail to take, or delay taking, such action, leaving the corporation to its own devices.)
Under Bill 106, this situation changes somewhat.
Notably, both of the special provisions noted above relating to tenancies are eliminated, such that now the same standards or criteria are applied for the removal of any person from the condominium property, whether unit owner or tenant. Further, the amendments now provide a clear and restrictive set of criteria, limiting the authority to issue an order to vacate the property permanently to just two specific circumstances:
Where that person poses a serious risk to the health and safety of individuals or to the property of the condominium corporation, in contravention of the new subsection 117(1) of the Act (relating to dangerous conditions or activities, but not to nuisances or disruptions); or
on the basis of that person's acts of non-compliance or oppressive conduct, the court is satisfied that the person is “unsuited” for the “communal occupation” or “communal use” of the property, provided that no other order will be adequate to enforce compliance or prohibit the conduct in question.
In principle, this is not a significant change to the law as it has been carried out to date. The courts have not readily granted such orders in the past; but the effect of these amendments is to ensure that there is no legislative authority for changing this trend.
It should be noted that an application for such an order can only be made to the court (not the Condominium Authority Tribunal), and cannot be made by the landlord unit owner against his, her or its own tenant. The eviction of a tenant by a landlord remains within the purview of the Landlord and Tenant Board under the Residential Tenancies Act, 2006.