The Landlord and Tenant Board (the LTB) was recently asked to rule on the age-old question of who, between the LTB and the courts, has jurisdiction over a dispute involving a condo tenant. This question regularly surfaces when condo tenants breach condo rules. These situations bring to light an impossible triangle between :
- the owner (the landlord),
- the tenant, and
- the condo corporation.
Each of these players has different recourses in different forums, under different legislation. This blog post sheds some light on the roadmap to be followed when a tenant fails/refuses to abide by the condo rules.
Facts of the case
Ms. McKeen (the Tenant) rents a condo unit from the Prasin’s. The Prasin’s own the unit and are the landlords. The unit is part of HCC 647.
Earlier this year, the condo corporation sent a notice to all of its occupants advising them that it would enter each unit for the purpose of inspecting the fire safety equipment. This was part of the mandatory annual fire safety inspection as required by the Fire Code. The Tenant refused access to her unit on two occasions, citing COVID-related concerns compounded by the fact she is severely immunocompromised.
The condo corporation commenced a court application under s. 134 of the act, seeking to exercise its right of unit entry. The Tenant challenged the court’s jurisdiction, indicating that only the LTB had jurisdiction over this dispute since she was a tenant. The question of jurisdiction was sent to the LTB for determination.
The question before the LTB
The Tenant asked the LTB to confirm that the condo corporation was a “joint landlord” for the purpose of the Residential Tenancies Act and that only the LTB had jurisdiction over this dispute. By extension, she was asking for a determination of whether the corporation’s right of access to the unit was regulated by the Condominium Act or by the Residential Tenancies Act.
Is the condo corporation a landlord?
The first question (whether the corporation is a co-landlord) is an important one. If it is, the Residential Tenancies Act applies and the LTB has jurisdiction.
The definition of a “landlord” under the Residential Tenancies Act is very broad. It includes the owner of the rental unit but it also includes:
- a person who is entitled to possession of the residential complex where the unit is located and who attempts to enforce any of the rights of a landlord under the tenancy agreement.
Looking at the facts of this matter, the LTB concluded that for a person to be characterized as a “landlord”, they need to be able to exercise the integral functions necessary to be a landlord. These functions included the ability to:
- enter into a tenancy agreement;
- permit people to take occupancy of, or to vacate, a rental unit;
- collect rent from tenants;
- terminate the tenancy based on the tenant’s conduct or late payments;
- regain possession of the unit for the landlord’s personal use;
- perform maintenance and repairs within the rental unit;
- change the entry locks to the unit;
- show the unit to prospective tenants; and
- ensure the tenant maintains the unit in accordance with the standards required under the Act.
Clearly, a condo corporation does not have any of these powers and is, therefore, not a “landlord”.
Naturally, keep in mind that a condo corporation can be a landlord if it actually owns a unit and is, in fact, leasing it to a tenant. But that is an entirely different story.
Moreover, the LTB did not close the door to the possibility of finding a landlord/tenant relationship in cases where some of the landlord’s duties/powers have been delegated to the corporation. It is therefore important for condo corporations not to blur the lines by accepting to act as a landlord for one of the owners.
Which legislation trumps the other?
The LTB confirmed that there is no legal relationship between the condo corporation and the tenant who pays rent to occupy a unit. The corporation has therefore no standing before the LTB. It’s only recourse is before the courts, the CAT or arbitration.
So what is a corporation to do if a tenant does not comply with some of the condo rules. In this case, what was the condo corporation to do if the tenant refused to grant access to her unit? Keep reading, the plot thickens.
It is interesting to note that both the Condo Act and the Residential Tenancies Act provide for a right of entry:
- Under the Condo Act: the corporation or a person authorized by it may enter a unit at any reasonable time to perform the objects and duties of the corporation (s. 19);
- Under the Residential Tenancies Act: a landlord may enter a rental unit at any time in case of emergency or with written notice to the tenant, at least 24 hours before, to carry repairs, replacement or work in the unit or for certain inspections, including those to ensure that the unit complies with health, safety, housing and maintenance standards.
While this may lead our readers to conclude that both roads lead to granting the corporation access to the unit, things get procedurally more complicated. Indeed, the LTB concluded that the Residential Tenancies Act had primacy over all other legislation relating to residential tenancies and that, as such, it had exclusive jurisdiction over these matters.
In an attempt to interpret both legislation harmoniously, the LTB suggested that if a condo corporation requires access to a unit, it could ask the landlord to serve the tenant with a Notice of entry in accordance with the Residential Tenancies Act. Alternatively, the landlord can enter the unit for the purpose of conducting the inspection. If the tenant refuses, the LTB suggests that the Landlord would then be able to file an application to the LTB.
Respectfully, I struggle to agree with this decision. The suggested process adds an unnecessary level of complexity and results in tenants having more rights than owners in the same complex.
Condos have a duty to control, manage and administer the common elements and the assets of the corporation. Section 119 of the Condo Act provides that owners and occupiers of units (this includes tenants) shall comply with the Condo Act, the declaration, the by-laws and the rules of the corporation. Courts have repeatedly stated that owners who move into a condo have an obligation to comply with the rules applicable to the corporation or, if they prefer not to, they are perfectly free to pick another complex where the rules better suit their needs and wishes. The same must be true for tenants. They must abide by the rules applicable to the condo corporation and cannot be in a better or different position than the owners. This is untenable.
I also fail to fully understand the logic of requiring that the notice of entry come from the landlord as opposed to from the corporation. What is clear from the fact of this case is that the Tenant had received a notice (in fact more than one). Why would it need to come from the landlord in circumstances where the unit is within a condo complex. Would the result not be the same?
As importantly, there are countless cases where courts have ordered tenants to comply with the Condo Act or the corporation’s governing documents. In fact, section 134(4) of the Act expressly authorizes the courts to even terminate a lease if a tenant failed to comply with the Act or governing documents.
Finally, keeping an overlapping jurisdiction places both the landlord and the corporation in an impossible position where the corporation has a recourse against the owner before the courts and the landlord has a recourse against the tenant before the LTB.
Steps to take when tenants breach the rules
There are many moving parts to this story and complex legal concepts. When faced with a tenant in breach of the applicable condo rules, the following must be kept in mind:
- The corporation should send notices and compliance letters to both the owner and the tenant;
- The landlord should consider taking immediate steps before the LTB to ensure compliance by the tenant or to seek termination of the lease if the tenant does not comply;
- If the tenant does not comply and/or if the landlord is not proactively taking steps to secure compliance or to evict the tenant, the corporation should bring an application before the courts of justice (or the CAT if its has jurisdiction over the dispute). Both the landlord and tenant should be named as respondents (remember that the corporation has no standing before the LTB);
- If you are a landlord, it is in your best interest to fully cooperate with the corporation and to assist the corporation in its efforts to secure compliance. Ultimately, as the unit owner, you are responsible for the breach by someone who occupies your unit. Commencing an LTB application without delay is going to go a long way to help exonerate you.
Naturally, the above roadmap will vary depending on what rule is being breach and whether the situation raises questions of health, safety and security. In all cases involving tenants, it is best to consult with your favourite condo lawyer.
As for your next in-suite fire inspection, you may want to encourage your landlord-owners to send a copy of the notice to their tenant (in addition to sending the notice directly to the tenant).
You can read the decision here.