Numerous court battles have been fought over unauthorized changes to common elements in condos. Generally, the condo corporation wins these cases, and the condo owner pays the cost to undo the changes and to cover some of the plaintiff’s legal costs. Even in such one-sided victories, where condo boards might ask “what is there to negotiate?”, it is possible to posit that mediation could have benefitted both sides.
In Peel Condominium Corporation v. Gorgiev (2011, Ontario Superior Court), the defendant had widened his parking area for a second car in violation of condo by-laws and without approval. He dug out the lawn and laid ashphalt on common elements of the property. He claimed that mental illness made parking in his garage too difficult, and argued for accommodation. Though disability would entitle him to reasonable accommodation, the court found that he had not advised the condo board of his health needs, nor provided expert medical evidence. In fact, witness testimony suggested there was a different explanation.
In Durham Condominium Corporation v. Moore and Wallace (2010, Ontario Superior Court), the respondents built a deck at the back of their townhouse that exceeded the approved plan and the condo by-laws. Citing the case of East Gate Estates Essex Condominium Corporation v. Kimmerly (2003), the court ordered the common elements restored at the respondents’ cost, and awarded legal costs too.
“In this instance the Board provided an authorization for landscaping which was exceeded…It matters not…that the landscaping appears to be beautifully done, or that all other unit holders find it pleasing. Where the elected Board concludes it is unacceptable for an area of the common elements which they are elected to govern their word is final. In a democracy, the manner in which to overturn such a determination is through the election process and there is no evidence the condo Board ever rescinded their initial approval.”
These cases were not close calls, and could have been predicted. Though each specific issue was different, the general principle of requiring permission from the Board was demonstrated in each one. Douglas Gray, in an online article entitled “Causes Of Condo Disputes And Options To Resolve Them,” wrote of the Six P’s that form the majority of disputes: pets, parking, parties, people, personalities and politics. From these cases, we can add plants and patios. Gray also outlined the five processes for dispute resolution: in ascending order of complexity, negotiation, involvement by board of directors, mediation, arbitration, and litigation. Litigation, even if the matter settles before trial, is the most expensive (tens of thousands) and/or the most stressful. Arbitration, while faster than litigation, is not always less costly.
The Condo Act (amended 2008), s. 132, stipulates that disputes must be resolved through mediation, or failing that, arbitration. Mediation is facilitated negotiation aiming at a (binding) agreement, while arbitration is an adversarial process before a decision-maker. In the above cases, a Board might argue, “There’s nothing to negotiate, and we’re not compromising on our by-laws.” Mediation still can be effective in such cases. A mediator can help an owner to become aware of the rules and likely consequences and to accept a face-saving way out that may or may not include small concessions or helpful suggestions from the Board. The process blends times in joint session with private breakout discussions. The latter allow parties to vent and to have important discussions about risks and choices. The overall goal of the process would be to save procedural costs for both sides, and salvage important relationships.
Mediation with a competent mediator is nearly always worth the few hours and few hundred dollars asked of each party. If mediation fails to reach agreement on all issues, parties retain their rights to try a more adjudicative process. Often enough, the parties will be surprised by an agreement, and relieved that the matter can finally be put to rest.
