Part 40 published on 01/11/12
Owner ordered to allow condominium corporation to remove unauthorized common element installation. Limitations Act did not apply to a breach of the Condominium Act.
In this multi-storey apartment building, a previous owner had made an unauthorized modification to the common elements: namely, the installation of a balcony enclosure.
The windows forming part of the enclosure had been removed, but the current owner had refused to remove the window frames.
The Court ordered the owner to allow the condominium corporation to enter his unit in order to remove the window frames. The Court said that the frames violated Section 98 of the Condominium Act, 1998: According to the Court: “Their installation, without the support of a Section 98 Agreement, breached the Act.”
The Court also said that the corporation’s application was not subject to a limitation period. The Court said:
…the cases that support that proposition do not relate to actions commenced to enforce compliance with the Act itself, but rather with internal governance documents. Where there is a breach of the statute itself, such as here, the Limitation Act, 2002 can have no application.
The owner also argued that the application should fail for delay, because the corporation had “slept on its rights”. The Court disagreed. The Court gave the following reasons:
- The Declaration contains a provision stating that failure to take steps to enforce the Act, Declaration, By-laws or Rules shall not constitute a waiver of the corporation’s enforcement rights.
- The corporation had exercised other enforcement options, quite apart from bringing the Court application. In particular, the corporation had sought to gain access to the balcony in question, in order to remove the window frames; but the owner had refused access.
- “There was no unreasonable delay on the part of the Condo Corporation in launching the Application once it became clear that Mr. Silaschi would not cooperate in removal of the offending window frames.”