Are Condo Bylaws Ineffective If Inconsistently Enforced? feature image

Are Condo Bylaws Ineffective If Inconsistently Enforced?

In a recent decision from the Court of Queen’s Bench of Alberta, a judge opened the written decision with a quote that reminds us of the old saying, “fences make good neighbours.” The decision, which concerned the installation of a doorbell with a camera function inside a condominium building, opened with the line, “To an outsider, disputes between neighbours often appear to be petty and pointless.” The saying has a lot of truth, alluding to the inflated importance people can sometimes place on matters inside their own lives. 

Disputes between people who have outdoor space separating them from one another can escalate easily, and that’s certainly not less likely to occur when neighbours share a hallway. Condo living is becoming more and more common in Canada. It increases condominium litigation, which includes disputes between neighbours in condos and individual condo owners and the board of the condo. 

This decision allows us to consider how relationships between condominium residents and their boards or neighbours have governed and the condo bylaws’ role in these relationships. 

Installation of doorbell brings controversy

The issue all started with an attempted break-in of the respondent’s (“LL”) condo in 2019. The break-in was attempted through the exterior patio doors of the unit, which LL had lived in since 1998. Following the incident, LL took steps to increase the security of her unit, installing a camera on the building’s exterior, which captured audio and video from her patio. In addition, she installed a doorbell on the door of her unit, which was capable of recording audio and video, with these features triggered when someone rings the doorbell. These security features were put in place in late 2019. The media captured by the doorbell is saved on a server for 60 days but can be kept longer if the owner of the doorbell wishes. 

Contrary to the condo bylaws, LL did not obtain permission from the board to install them. The bylaws state, 

[An owner shall] not make any repairs, additions or alterations to the exterior of his unit or the building … without first obtaining the written consent of the Corporation.

The controversy begins

The use of recordings from the unit door made some of LL’s neighbours uncomfortable. “JA”, who lives in the unit directly across the hall from LL stated that the doorbell’s recording function was triggered when people entered or left her condo. She said the use of the doorbell amounted to an invasion of her privacy. JA complained about the doorbell to the condo board in January 2020.

The relationship between LL and JA began to sour, with JA giving the “middle finger” to the camera when she left the house and LL, in turn, posting photos of those incidents to the internet, tagging JA’s employer. 

The condo board discussed the matter on February 27, 2020, and unanimously expressed their discomfort over it. JA’s partner, who also lived in the unit, was asked to remove the doorbell. JA and her partner refused to remove the doorbell, and eventually, COVID-19 hit in March of that year. During the early days of the pandemic, LL used the video recordings from her doorbell to report JA for violating public health orders. This led to JA being subject to an investigation.

The issue reached a head in June 2020 when LL’s legal counsel wrote to the board, stating the bylaw restricting the modification of the exteriors of units was not violated by LL because the board had been selective in its enforcement of the bylaw. 

The court heard from the parties involved and issued its ruling after considering a number of factors, including the LL’s position that the board cannot change a policy to prohibit actions by an owner retroactively and that the board was historically selective in its enforcement of the bylaws. 

Does the past conduct of the board impact its ability to enforce bylaws?

LL relied on a 2015 decision from the court, which she says shares some factual details with her situation. A condo unit owner had a pet for over two years in that decision. The board was aware of the pet but did not act on a bylaw prohibiting unit owners from having them. The board, which eventually ordered the unit owner to remove the cat, was conducted itself improperly. 

The court said there were some distinctions between the two situations, namely that the unit owner referenced by LL had the cat when she moved into the building and did not purchase or adopt it after doing so. 

LL told the court that other neighbours had also modified their doors, including by installing “smart” locks featuring keypads and peepholes in the doors. However, the court found that the board’s decision to exercise discretion over which modifications it would approve does not mean that any modifications are permitted. The court wrote that LL could reasonably expect to decorate her door, say with a wreath, but that expectation cannot extend to video recording equipment.

The court also considered the invasion of privacy experienced by JA, stating that a reasonable person would also feel the same way if placed in her position, and ordered LL to remove the doorbell. 

HMC Lawyers provides legal advice on condominiums from the early stages of construction to condominium disputes and litigation

The advocacy team at HMC Lawyers has extensive experience working on behalf of those in the condominium industry and those in the construction industry. We have worked on matters related to construction issues, contracts, builders’ liens, and more. We understand that delays in the construction of condominiums can have significant impacts and work to balance the needs of our clients to resolve issues quickly while giving them the best opportunity for a favourable result. Please contact us online or by phone at 1-800-480-3534 to see how we can help you in your condominium dispute today.

 

 

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