Gerry Hyman has another article for the Toronto Star. Let’s discuss some of the questions:
QUESTION: My unit has one parking spot which is large enough for my car and my motorcycle. The manager advises that I must remove one since the declaration refers to a parking spot for “a” motorized vehicle. The board interprets “a” to mean one. If there’s room, is it not reasonable that I be allowed to park both vehicles?
ANSWER: You may be correct that parking both vehicles is reasonable. A declaration prohibition, however, need not be reasonable in order to be enforceable. “A” motorized vehicle indicates one vehicle only.
I disagree with the first part of Mr. Hyman’s response, but I agree with the second part. If the parking spot is only designated as one parking spot, not two, then it is not reasonable to have two vehicles in one spot. One spot always equals one vehicle. It’s that simple. But with the declaration making it clear that only one vehicle can be in one spot, that resolves the issue there. The people need to rent another spot.
Another question raised:
QUESTION: Two years after we bought our unit, a loud humming noise began — apparently from the garbage room below our unit. We have been told that the noise is from a large fan that was recently hooked up and that nothing can be done about it. Is that true?
ANSWER: The garbage room fan, if operating correctly, should not be so noisy as to prevent the proper use of your unit. If that is the case, necessary repair or replacement of the fan is the obligation of the condominium corporation.
The Board has options:
- It can repair the fan as it sounds like there is an issue with the fan.
- If there is nothing wrong with the fan, then perhaps some insulation can be added to the room to reduce the noise. There options for this, and the Board needs to look into this if there is nothing wrong with the fan’s operation.
A third question raised is:
QUESTION: My neighbour across the hall is a heavy smoker. The smoke enters my unit and is affecting my health. Management has said there is nothing that they or the corporation can do. Is that correct?
ANSWER: No. The Condominium Act requires the corporation to enforce the Act. Section 117 of the Act prohibits any activity in a unit or common elements that is likely to cause injury to an individual. That includes injury to a person’s health. A court action could be commenced pursuant to Section 134 of the Act requesting an order that the corporation take the required steps to enforce Section 117.
Alternatively, the court could be requested to order stopping the smoke, an established carcinogen, to escape to other units or to the common elements, constituting a health risk contrary to Section 117.
The Board is required to do something, this is a health and safety issue. This is where the Government needs to do more to help unit owners enforce their rights. Hopefully, the soon to be implemented Condo Office will help, as it should. The Board should never be allowed to get away with such incompetence.
The last question raised is:
QUESTION: The board has sent notices to owners that it needs entry for security staff and a plumber to inspect for leaks in pipes and to install a water conservation device on each toilet.
There are no leaks from my plumbing and I have water-saving, dual flush toilets. Can I refuse entry?
ANSWER: Section 19 of the Condominium Act permits entry at a reasonable time, on reasonable notice, by the corporation — or a person authorized by it — to perform the duties of the corporation or to exercise its powers. I am of the opinion that in the absence of evidence of a leak from your unit, entry to inspect for an unknown leak is not within the objects, duties or powers of the corporation.
Similarly, there is no object, duty or power of the corporation enabling the corporation to replace or alter a unit component such as a toilet. I believe that the entry notice does not comply with Section 19 of the act and is not valid.
If there is no leak in the unit, then I agree there is no reason to inspect the unit. If there was a complaint about a leak, then that would be different.
As for the toilet, if the water supplied is paid for by the corporation, not the individual unit owner, then I would say that the corporation could be allowed to make the alteration. However, if the unit already has energy efficient toilets, there is no need for the corporation to do this. However, at the end of the day, the toilets belong to the unit, not the corporation. As such, the corporation could offer to perform the alteration, but should not require owners to consent. Saving the corporation money (through lower water costs) is in everyone’s benefit when the corporation is paying for the water.
Edward Brain's Blog 