Part 34 published on 01/05/11
Despite corporation’s “selective enforcement”, owner ordered to reverse common element modification
The owner had made a change to the common elements, namely the installation of a vent through the outside wall for a tankless gas water heater. This was done without the consent of the condominium corporation as required by the declaration (and the Act).
The owner argued that the corporation had been selectively enforcing the declaration, and it would therefore be unfair to enforce it against her. The Court agreed that there had been selective enforcement on the part of the corporation (some violations had gone unchallenged), but nevertheless granted the corporation’s application for an order requiring the owner to reverse the change. The Court said:
“The argument regarding selective enforcement raises issues of fairness on both sides. On the one hand, unit owners as a group, and their representatives, the Board of Directors, have an interest, and indeed a duty, to enforce the Declaration. On the other hand, the individual unit holder who violates the Declaration has a legitimate cause for complaint where the Board of Directors have permitted other violations to occur without consequence. The task of the Court is to balance these competing interests in a specific case. “
“In my view, there has been a degree of selective enforcement by the applicant sufficient to give rise to a concern. However, it does not approach the rampant non-enforcement that has arisen in some cases, particularly those involving in keeping of pets.”
“Once registered, the Declaration has the force of law, at least as far as the unit holders are concerned. It is a sort of Constitution that binds them all, and which the Board of Directors is legally obliged to enforce. There is an interest, in the collective, in having the Declaration enforced, even if some transgressors have been allowed to violate it. In such a situation, the collective’s interest in having the Declaration enforced must prevail over the private interest of the respondent. The situation would undoubtedly be different if there was massive non-enforcement as was the case in some of the cases involving pets.”
Although the Court therefore granted the order requested by the corporation, the Court said that the “selective enforcement is relevant to the issue of costs”. The Court invited submissions with respect to costs, and we don’t yet have the Court’s ruling on costs. However, the Court’s decision clearly indicates that the cost award will be affected by the fact that there was selective enforcement on the part of the condominium corporation.
In the course of the judgment, the Court also rejected the owner’s claim of “promissory estoppel”. (The owner argued that she had been led to believe, through the Board’s inaction, that she was permitted to make the particular change.) On this issue, the Court said “the evidence falls far short of demonstrating that the (condominium corporation) made a representation on which the (owner) relied to her detriment”.