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An Alberta court has upheld the right of a condominium corporation to evict a bylaw-breaching homeowner. The Sept.18, 2003 decision in Edmonton strengthens the hand of Condo Boards that sometimes struggle with those few owners who feel they are above the bylaws that maintain peace and quiet for all. Until this ruling, corporations could evict the misbehaving tenants of owners, but the authority to evict an owner had been in doubt. No more.
The story begins, of course, with the resident of a condominium home who, with help from frequent noisy, messy and rude visitors, created a bit of a nightmare for the neighbours. Adjacent owners, on top of verbal complaints, made twenty-three written complaints. The corporation and its manager spoke with and wrote to the disruptive party on several occasions, but the abuses continued. Finally, the condo corporation served notice of eviction under a seldom-used section of Alberta's Condominium Property Act, and had a judge so order.
To make the story more interesting, the bylaw-violating resident did not at the time own the suite, but was the tenant of her parents. Rather than deal with the issues their offspring was creating, the parents indulged her further by transferring ownership for the grand total of $67, although the suite had been valued at $140,000. They then appealed the eviction order, arguing that their offspring was the owner, and owners can't be evicted. It might have worked.
In a judgement written with admirable clarity, Hon. Justice Donald Lee upheld the court-ordered eviction, regardless of whether the person in the suite was a tenant or the owner. He also ordered the family involved to pay the legal costs of the condominium corporation, which of itself is a pretty strong statement. Justice Lee made it clear that, "…a person's right to do as they choose in their home must yield, at least in degree, where ownership is in common or cooperation with others. Individuals ought not to be permitted to disrupt the integrity of the common scheme."
The judgement's summary goes further. "I have decided that an owner of a condominium residence can be evicted by the condominium association for substantial breaches of the condominium bylaws, just as if she was a tenant. In this case the Appellant was basically a tenant in any event, or holding the property as a constructive trustee. However, even if she was the owner of the condominium unit at all times, she could still be evicted by her condominium association in these circumstances."
"All owners of condominiums are required to obey the condominium bylaws, and give up the right to do as they choose in their homes, given that their unit ownership is in common, and in cooperation with others," he continued. "…owners will…not be allowed to disrupt the common scheme by their individual actions in breach of the contact they have entered into with the other owners as signified by the bylaws."
Justice Lee put aside hair-splitting over whether the resident of the suite was a tenant or the owner. Regardless of that question, he ruled, section 67 of Alberta's Condominium Property Act gives a court discretionary authority to, "…make any other order that the Court considers appropriate in the circumstances." In this precedent-setting case, that order was to evict the condo homeowner for repeated breaches of numerous condominium bylaws.
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