04/23/2024 – Jurisdiction Ontario
Part 86 published on 01/06/2024
Declaration did not permit parking units to be used for storage.
The condominium corporation’s Declaration said that the parking units could be used only for the purpose of parking private passenger motor vehicles. Many years previously, the condominium corporation had passed a Rule permitting certain parking units also to be used for storage. However, after receiving an order from the Fire Department indicating that such storage contravened the Fire Code, the condominium corporation had repealed the Rule. The condominium Board had also initiated steps to require that the historical storage (permitted by the Rule) be brought to an end.
The Tribunal held that the Declaration did not permit storage, that the Rule was not consistent with the Declaration and that the Board’s decision to repeal the Rule and to prohibit the storage should be accepted.
The Tribunal also held that the historical permission of the storage did not prevent the condominium corporation from enforcing the Declaration, given a non-waiver clause contained in the Declaration. The Tribunal’s decision included the following:
On a plain reading of it, there is no reasonable basis for questioning that Clause C.2(a) of the Applicant’s declaration prohibits the use of parking spaces in the condominium for anything other than parking motor vehicles.
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It is a well-established principle of law that condominium boards possess some discretion with respect to the manner and extent that they will enforce provisions of their governing documents, and provided their discretion is exercised reasonably they are entitled to deference in respect of such decisions. As such, it is not relevant whether the Respondents, or I, or any other reviewer of their decision believes they would have made a different decision in the same circumstance. That is not a valid test of whether a decision is reasonable.
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It is not reasonable to order compliance to take effect at such an indeterminate time as the Respondents’ have requested. However, I have considered that, despite having had, in principle, ample opportunity to comply, it is likely that the Respondents will require a practical amount of time to achieve actual compliance. Therefore, I will grant them 60 days from the date of issuance of this order to remove from each of their parking units all storage items, including all cabinets, shelving, tires, appliances and any other items other than private passenger motor vehicles.
If, at the end of the 60 days, the Respondents have not accomplished this, I agree that the Applicant should have the right, on reasonable notice (which, in this case, I would specify to be a minimum of two days) to remove the non-compliant items and that it would be appropriate, if it does so, to store those items securely so that the Respondents can retrieve them. It is also reasonable that the costs of such removal and storage should be borne by the Respondents. While I believe the Applicant likely already has the authority it needs to take such actions under section 19 and subsections 92 (3) and (4) of the Act, I find that the Tribunal has authority to make such an order under clauses 2, 3 and 7 of subsection 1.44 (1) of the Act, and therefore do so.