Happy Dog Days of Summer,

As construction season ramped up again earlier this Spring, a recent decision out of the Superior Court of Justice dealt with a situation where a condo urgently needed to conduct rooftop repairs, but its neighbour would not grant the condo access to its land so the condo could access its podium. The issue for the condo was that it had no other reasonable way of accessing the rooftop where repairs were needed.

What typically happens in these cases

What typically happens when a condo needs to access a neighbour’s land for a temporary period is that the neighbours will discuss amongst themselves and come to an agreement to permit the condo to access its property via the neighbour’s lands. Of course, the neighbour may ask for certain protections, such as an indemnity agreement / insurance coverage (in the event any damage to its property occurs) or some logistical arrangements to limit the disturbances for their residents (such as alternate parking arrangements, a work schedule that does not begin too early in the morning, a limitation on heavy machinery, etc.). In some situations, the neighbour may also seek to be indemnified if it incurs expenses to arrange the access.

But what happens when negotiations break down? Or when the neighbour is, seemingly, asking for too much? That’s where the city can get involved, by issuing a “right of entry” permit to the condo.

What is a “right of entry” permit?

Municipalities across Ontario have similar processes by which an owner of a property can submit an application to the City for a permit, allowing them to access a neighbour’s property when access is “necessary” to conduct urgent and necessary work. This “necessity” is determined by the City’s inspectors and bylaw officers. Once the City deems the work to be necessary, they issue a permit authorizing the condo to access the neighbour’s land, under strict conditions. One of these conditions is the payment of a damage deposit, which is held by the city until the work is done. This protects the neighbour from any damage that might arise to its own property during the construction.

Here is the bylaw and application process for Ottawa

Here is the bylaw and application process for Toronto

Facts of the case

In the recent case of Falsetto & Sons Ltd. v City of Ottawa and CCC 339, a condominium corporation, located in a densely populated downtown residential neighbourhood of Ottawa, had to conduct repairs to its rooftop membrane. Their reserve fund studies had predicted this work for many years – and the time had come to do it. In order to conduct the required work, the condo had to have its contractors use a small telehandler (mini telescopic forklift) to lift materials to and from their rooftop. The only way to access the rear podium was via the neighbour’s property – who had an exterior, unpaved parking lot abutting the rear of the condo.

The condo approached the owner of the building to discuss the urgent repairs and to get permission to temporarily access their back parking lot. Discussions took place over several months. Ultimately, these discussions broke down, most notably on the issue of an “access fee” demanded by the neighbour.

As negotiations did not look promising, the condo used a different tool: it applied to the City of Ottawa for a “right of entry” permit.

The owner of the residential building was not pleased that, in its view, the condo was trying to get around negotiations with them and get permission directly from the City. They were so displeased that they went as far as to bring an extraordinary legal proceeding – an urgent injunction against the City and against the condo to prohibit the City from issuing a permit and to prohibit the condo from accessing their land. Their main arguments were that access to their land was not “necessary” as there were, in their view, other alternatives available – such as shutting down a nearby main traffic artery to access the podium, from the front, with a 85-Ton crane. They also argued that the access and the work would cause “irreparable harm” to the relationship with their tenants and to their historic building if damage would occur.

The condo and the city argued that the work was indeed urgent and necessary; that they had carefully considered all other available options; and that the owner was already well-protected by the substantial damage deposit that the condo had already paid to the City for the owner’s benefit in case of damage (a more than $125,000 deposit). Temporary access to the neighbour’s land was the only reasonable and proportionate option.

What the Court decided

The Court sided with the condo and the City. The Court was satisfied that the work was urgent and necessary, and agreed with the condo that the alternate options were unreasonable or practically unworkable. The Court also commented that it was entirely reasonable and appropriate for the condo to have approached the City for a permit. This tool exists under a municipal bylaw, and can be used in situations such as this – where neighbours simply can’t agree.

As to the legal test for an injunction (known to our avid readers as the RJR Macdonald test), the Court held that there could be no “irreparable harm” to the neighbour by permitting access to their land (as any damage could be compensated in money), and that the “balance of convenience” clearly favoured the condo. The injunction request was dismissed, with costs ordered against the neighbour.

[For the legal nerds out there, the neighbour also tried to bring a “statutory injunction” under S. 440 of the Municipal Act, arguing that the City was in “clear breach” of its own bylaw. This argument too, was rejected by the Court].

Takeaways

  • If access to a neighbour’s property to conduct repairs is truly necessary, start by negotiating with the neighour in good faith. There may be some costs to this, but these costs will be far less than the costs of litigation;
  • Start these negotiations early, as it may take some time to come to an agreement;
  • Make sure that the scope of work, the schedule of work, and all details of the work are well-documented by the condo’s contractors and engineers; and
  • If negotiations break down, consider whether an application to the City for a right of entry permit is available to you, in the circumstances.

These sorts of negotiations can be delicate. As we see from this case, they can spiral into a legal dispute, even over small sums of money. When considering construction work that may require access onto a neighbour’s land, condos would be wise to get a complete documented understanding of what work needs to be done, by whom, when, and with what tools. As there are a lot of moving parts, condos may also be wise to engage the advice of their legal counsel at the outset of the negotiations, to help de-escalate and avoid potential litigation.

Gowling acted for the condo in this case.