Condo giving my bike the boot | Page 6 | GTAMotorcycle.com

Condo giving my bike the boot

GateKeeper said:
Well don't question it, call them yourself as I did, I only posted what I was told, and told them what the OP posted.

And no you cannot stop or prevent persons to have a pet, my parents lived in a building that had this as a rule, and as a by-law, and it was ordered to be removed, no if's and's or but's about it, you can have how many pets, their size, but you can't say you can't have one.

And according to the LTB, condo rules do not always have the last say.
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Then I think you received faulty information.

The pets in condos issue comes up a lot. Unless you're talking about a service animal such as that used by the blind, the courts generally uphold condo prohibitions against pets if they exist. The article in the link I gave http://www.nelligan.ca/e/pu_article.cfm?article=61 gives more background and information on how tenants are governed by condo law. The Residential Tenancies Act (once called the Landlord Tenant Act) does not supercede the Condominium Act when it comes to the obligation to abide by a building's Declaration, Bylaws and rules.

There are many other court decisions involving the enforcement of provisions of the Condominium Act or a condominium’s declaration, by-laws or rules, as against one or more tenants in the condominium. Perhaps the most prominent recent decision is the case of Nipissing Condominium Corporation No. 4 v. Kilfoyl (2010). In that case, Ontario’s Court of Appeal (confirming the decision of the lower court) ordered the eviction of a group of tenants based upon their failure to meet the definition of “family” and “one family residence” contained in the condominium’s declaration. [Note as well that the Court of Appeal held that there was no violation of Ontario’s Human Rights Code.]
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GateKeeper said:
And no you cannot stop or prevent persons to have a pet, my parents lived in a building that had this as a rule, and as a by-law, and it was ordered to be removed, no if's and's or but's about it, you can have how many pets, their size, but you can't say you can't have one.
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If the building is a pure rental, then a no pets rule is invalid.

If the building is a condo with some or even many units being rented, RTA provisions permitting pets are set aside and a no pets rule is valid and can be enforced.
http://canlii.org/en/on/onsc/doc/2003/2003canlii44549/2003canlii44549.pdf
 
dcx135 said:
I'm on the condo board at my building and, as Corporate Secretary, am in charge of the Rules and other legal documents. I have two motorcycles and car (but two parking spots). There's another motorcycle owner on the board so no issue in my building. Some comments:

1. Usage of the parking spot is specified in the Declaration, not the Bylaw. To change the Declaration requires 90% approval from all owners. This is next to impossible to achieve. Bylaws require 50%+1, and even getting those passed is a challenge.

The exact wording of the relevant section of the Declaration (yours may vary but lawyers like using templates!) is as follows:

"Each Parking Unit shall be used and occupied only for the parking of a motor vehicle as may be from time to time defined in the Rules... the Owners of Parking Units shall not park more than one motor vehicle within the boundaries of such Parking Unit... in no instance shall any portion of any motor vehicle parked within a Parking Unit protrude beyond the boundaries of the Parking Unit and encroach upon any portion of the common elements or upon any other Unit."

2. In our building, we are obviously ignoring the first part of the wording (i.e. only one vehicle allowed per spot), but we enforce the second - i.e. you shall not exceed the space you've been allotted. We have high calibre people on the board (all professionals, not just a bunch of nitty busy-bodies) and take a pragmatic approach to these things. Your board may be full of frustrating nits. If they choose to enforce the exact wording of the Declaration, there will be little you can do about it.

3. If you have any evidence that there have been more than one vehicle parked in a spot for any length of time, you can use that as a defense. Provisions of the Rules or Declaration that have not been consistently enforced lose their effect (at least that's how judges have ruled, especially in cases related to pet restrictions).

4. Get on the Board - it's the easiest way to make changes and argue your case. Plus you may learn a few things about how condo corporations operate. I particularly like to keep an eye on management, the budget and potentially reckless spending.

Good luck!
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With regard to DCX135's 3rd point, see the following link (I have highlighted the relevant parts and will comment in brackets):

http://elia.org/index.php?option=com_content&view=article&id=112&Itemid=42

CONDOCENTRIC: Selective Enforcement of Condominium Rules Subsection 17(3) of the Condominium Act, 1998 (the “Act”) puts an onus on condominium Boards to “take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.”

Once in a while, Boards and/or property managers face allegations that they have “selectively” enforced the condominium rules (though this article is written in favour of condo boards, the grounds on which a ruling for selective enforcement is outlined below, just so you know how you win or lose on selective enforcement grounds). The argument is that compliance by a certain individual should not be required, since to do so would result in unfairness or discrimination as the rule (or others) was permitted to be broken in the past. What should a Board or property manager do when someone accuses them of selective enforcement? Does the fact that there has been selective enforcement, in and of itself, mean that the wrongdoer is exempt from having to obey the rules? (As you will come to find further down, "selective enforcement" is not in and of itself a rebuffing of the condo demand you remove your motorcycle, however........read on!)

This question is not simply an academic one, as—given the practical realities of trying to enforce rules in a community often numbering in the hundreds—there are almost always cases where violations of the rules go unpunished.


This issue was considered in the recent (January 5, 2012) Ontario Superior Court of Justice decision in Durham Standard Condominium Corporation v. James A. Morton, 2012 CarswellOnt 77). This case dealt with a unit owner who exceeded the maximum number (i.e. two) of dogs allowed per unit; whose dogs were heavier than the maximum weight (20 kilograms) allowed; and who refused to put his dogs on a leash—all of which were in contravention of the Corporation’s declaration, by-laws, and/or rules. There was also evidence that on a number of occasions, the unit owner’s dogs had jumped up on, or had frightened, residents of the Corporation. The Corporation deemed both dogs to be a nuisance and a danger to the residents of the Corporation, and, pursuant to the declaration, gave the unit owner written notice that he had to remove the dogs from the Corporation within two (2) weeks. The unit owner refused to do so, and the Corporation brought an application for a compliance Order pursuant to Sections 117 and 134 of the Act.


In his responding materials, the unit owner alleged that the Board was discriminating against him, given that there were numerous instances (which the unit owner documented with colour photographs and other evidence)—many involving the pet rules—where the Board had chosen not to enforce the declaration, by-laws, and/or rules.



The Corporation filed evidence admitting instances where the declaration, by-laws and/or rules had not been enforced in relation to pets. Indeed, the Corporation acknowledged that it was aware of other owners who owned more than one (1) pet. The Corporation, however, argued that it had chosen to enforce the pet rules based upon “complaints,” and that to date, the only complaints had been about the respondent’s dogs (this point is the crux of why the owner goes on to lose this case!).



In his decision, Justice Glass referred to a number of previous decisions involving the allegedly selective enforcement of rules. Justice Glass stated that the standard of review of a decision of the Board by the Court is not whether the Court would have made a different decision. Rather, “the reviewing court considers the reasonableness of the decision of the board as well as whether it was a decision reached capriciously” (emphasis added) (The must be evidence that the condo board did not come to this decision out of the blue, but that issues have been raised, filed against you......or as will be outlined below you parking of the bike is a threat to public safety or health to supersede the "selective enforcement" argument).



Justice Glass referred favourably to the Ontario Court of Appeal decision in City of Toronto v. Polai, [1970] (this case is important!)1 O.R. 483. In Polai, the Court found that while there had been discriminatory enforcement of a municipal by-law, nonetheless, the “public interest” in the continued enforcement of the by-law should prevail over the private interests of one who flouted the by-law (or, as Justice Gray put it, “the interests of the whole took precedence over a single person”). Applying Polai to the facts before him, Justice Glass ordered that the respondent had to permanently remove his dogs from the Corporation. In particular, Justice Glass stated as follows:


The materials filed by the Applicant here reveal that the condominium corporation appears to be acting as many municipalities do with their by-laws. That is, they act reactively rather than proactively. With respect to the Durham Standard Condominium Corporation, the board has only had complaints about Mr. Morton and his dogs. (If it were not for the specific complaints and fear among the "public interest" then the owner would have been successful in a "selective enforcement" refbuffing of the Condo decision.)



…The board has received complaints from people who express fear of Mr. Morton’s dogs jumping up towards them. There is a potential danger of injury to others.


What does the Morton decision mean for condominium Boards and property managers?


Condominium Boards and property managers would do well to note the following:


· Condominium rules should always, insofar as is reasonably possible, be enforced uniformly.


· The fact that there has been allegedly selective enforcement, however, does not automatically mean that the rules cannot be enforced against a particular individual. For one thing, a reviewing Court will consider whether the Board’s decision was reasonable and/or capricious.


· In certain circumstances, the interests of the entire condominium community at large may take precedence over the interests of a single individual—even where there has been selective enforcement of a condominium rule.



· Where there has been allegedly selective enforcement, a Court will consider whether there is nonetheless a principled basis for the selective enforcement (e.g. basing enforcement on complaints only, rather than on any and every instance of a violation of the rule).


· While condominium Boards and property managers should always strive to act proactively, rather than reactively, the fact that there has only been reactive enforcement to date is not necessarily fatal.


By: Edmund K. Chan- April 2012
Hon. B.A., B.A. (Oxon.), M.A. (Oxon.), LL.B.

T: 416-446-0800 ext 804
F: 416-446-0804
E: echan@elia.org
Toll Free: 1-866-446-0811

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.


So, it appears the selective enforcement counter claim is valid, but you would need to prove that they are not enforcing the rule on others at the property and that their enforcement of it upon you was not precipitated by complaints or safety concern.

I would canvas your immediate neighbours and ask if they have had any issues with your parking. Document any other instances of others parking a motorcycle or scooter in the same spot with their car, or any 2 vehicles in the same spot. Canvas them and get statements as to how long they have been doing it and whether they have had complaints or instructions filed against them.

I am dealing with a similar situation and essentially I will approach my property managers and ask if any action or complaint has brought on their enforcement. If they slip up and say no, but merely that I am breaking the rules, they will then have voided any counter-selective enforcement claim on my part.


My next question is.....Is it acceptable to record a face to face conversation with someone and use that as evidence against them? For example, if I ask the property managers why they are only now enforcing the rule (after over 18 months of not enforcing it), and they remark there have not been complaints of safety issues raised; can I use that for my case against them? I could just turn on my voice recorder on my phone and be discreet about it ;)
 
cyberphox said:
What if we are owners of the condo? Would this place still be able to assist?

EDIT: they deal with renters and landlords only.
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Aren't condo owners technically paying "rent" to the condo corporation to use the common spaces (owned by the condo corp)? Do condo owners not have rights in this regard? Does the condo board not technically own the land the building is on and as such are they not de facto "landlords"?
 
so ...we moved from motorcyle parking to pets in condos???

To the op...if you are reading all this then look below in the non related classfields...lets meet up and get a rental storage place that is bike friendly and ride our bikes in peace....
 
In my condo, the rules are maybe subject to interpretation. They state that "a vehicle of no more than ... lb gross vehicle weight may be parked in a spot.." and that unpowered objects like trailers and bicycles are not allowed. I've been getting away with parking my car and my bike in my spot, the two combined do not exceed the weight limit.

However, there are a handful of vehicles parked that actually do exceed the GVW limit in the bylaws. If my condo board decides to come after me, I'm more than willing to point out the other vehicular violations as a way to delay and force a reexamination of these particular bylaws.
 
Do what I did. Tell them you feel it unsafe having your bike in a spot stand alone w/o your car blocking it in to prevent theft. As per the contract it states that they are not responsible for any damage or theft of your property. So you are doing what you can to prevent theft of your property. b/c of this they are not creating anchored parking sports for bikes @ my place :)
 
How did this get revived 6 months later lol.. amazing really.

Anyway, I moved to a different condo.. screw that place. The new condo is my old building I lived in and they don't give a **** about motorcycles parked with cars... sooo problem solved :)
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