In a rare decision, the Ontario Superior Court of Justice has agreed to compel a condominium owner to sell her suite and leave the building due to allegedly unruly behavior.
The case,
Metropolitan Toronto Condominium Corp. No. 747 v. Korolekh, is not the first time a court has leveraged s. 117 of the
Condominium Act, which prohibits residents from engaging in dangerous activities, although few arguments under the section are successful.
Yet in light of several other important condominium-related decisions by the courts, real estate lawyers, especially those who practise in the field part time, are facing some significant case law developments that could make their practice more challenging.
In Korolekh, Natalia Korolekh, a 41-year-old stockbroker, was accused of repeatedly intimidating her neighbours with her 70-kilogram Rottweiler and by playing loud music, poisoning neighbours’ plants, and generally being an unruly neighbour in a high-end townhouse complex in downtown Toronto governed by a condominium board of directors.
In granting its decision in favour of the condominium board, the judge has scheduled a subsequent court date of Dec. 1 to ensure the ruling has been complied with; as much as a month after the Aug. 17 court ruling, Korolekh had not removed her dog from the premises nor had she put her condo up for sale.
Accordingly, the lawyers involved in the case, David Strashin for Korolekh and Ryan Treleaven of Heenan Blaikie LLP for the condominium corporation, declined to comment for this story although several lawyers who practise real estate law have been following the case closely.
Andrea Krywonis at Gardiner Miller Arnold LLP in Toronto has written about the case in the firm’s
Ontario Condo Law Blog. “In this case, the reason I think the eviction was granted is that [Korolekh] did not recognize or acknowledge the fact that she had breached any rule at the condo,” she says.
She notes the court surpassed the mandated mediation and arbitration requirement as, based on the defendant’s alleged attitude, it deemed the process would not serve any purpose. That is ideal to be able to expedite the process at a lower cost to the condominium corporation, she adds.
“Not that we don’t like mediation or arbitration, but it adds to the cost and if you have someone on the property who is denying that they’re doing anything wrong, it can prolong the process,” says Krywonis. “It is much quicker and cost-effective if the courts deal [directly] with a case like this.”
She says her firm dealt with a similar case as far back as 1991 when a condo owner was compelled by a court to sell his unit based on his inclination to hoard junk.
The most important thing a condominium corporation can do to ensure its success in challenging one of its residents is to keep all documentation regarding any complaint against a resident, says Krywonis.
Douglas Shanks, a partner at Cheadles LLP in Thunder Bay, Ont., has also been following the case.
“There certainly are cases that are similar to this but this case was unusual in that it did set a precedent,” he says.
“There have been some other cases wherein the court ruled the section [117] was extraordinary in terms of relief but notwithstanding that, the judge ruled this was a situation where this was appropriate because there was everything from physical violence to threats and verbal abuse.”
Shanks also notes that Korolekh has been ordered to pay costs for the condominium corporation, which he says is noteworthy for any law firm representing condominium corporations in the context of furnishing all documentation of record, no matter how insignificant.
In another blog posting, Christopher Jaglowitz, also of Gardiner Miller Arnold in Toronto, declares the case of
Jia v. Toronto Standard Condominium Corp. No. 1479 to be equally noteworthy for real estate practitioners in the condominium field.
In Jia, a condominium superintendent allegedly assaulted a visitor, who in turn sued the condominium corporation.
As Jaglowitz notes, “It was one of the rare types of cases where you have an employee by the corporation being accused and sued for assaulting a person. In this case it happened to be a visitor who was [allegedly] assaulted.”
He acknowledges that condo owners and their respective boards of directors have to be cognizant of their insurance policies accordingly.
“Clearly the insurance always has a part to play and the condominium corporation has to ensure it has adequate coverage,” says Jaglowitz.
Therefore, any condominium legal counsel should ensure their client’s insurance coverage first and foremost.
“This case is a good reminder [of] just how broad the insurance coverage needs to be,” says Jaglowitz.
He says insurance companies are usually very strategic and proactive in resolving any matters related to unruly tenants and in the event that the parties don’t resolve the issue, it can indeed constitute a huge amount of work for the condo corporation.
“It’s not a typical situation you see at a condo corporation and the unusual feature of this case was that it went all the way to trial.” Yet for condominium corporations, “This case is a good reminder of just how broad the insurance coverage needs to be,” says Jaglowitz.
