Enforcing Breaches

Enforcing breaches of the condo’s rules (found in the Condominium Act (Act) or your governing documents such as the Declaration, Bylaws or Rules) in relation to exclusive use common elements (EUCE) is no different that enforcing breaches generally. However, you may have specific rules that deal only with EUCE which may permit or prohibit certain types of activities on EUCE that do not apply to the unit or the common elements generally. As such, in terms of enforcing a breach on an EUCE, you will follow the same steps you follow for any breach. First you need to read your governing documents and the Act carefully to determine if a breach has occurred. If a breach has occurred, you will want to send the owner and tenant (if applicable) notice of the breach and information about how to correct it with a specific deadline for action to be taken. If the breach continues, you will send a second or third warning letter attempting to obtain voluntary compliance. If you can not obtain voluntary compliance you may then need to speak to your condo lawyer about next steps which can include an application to CAT, mediation/arbitration, or a court application depending on the subject matter of breach. Condo Corporations have a duty to enforce the rules on the exclusive use common elements in the same manner as they have a duty to enforce the rules with respect to the common elements and units.

The designation of “exclusive use” only defines what portion of the common elements can only be accessed by certain people. However, the designation does not change the fact that you are still dealing with a common element and not the unit. Generally, common elements can be accessed by all owners as they collectively own the common elements and units can only be accessed by those that the owner gives permission to. The EUCE are not part of the unit and are not owned by the unit owner. Some examples of EUCE can include: front yards, back yards, driveways, balconies, or terraces. Most condominium Declarations will contain a schedule that will define what is an EUCE. The Description will also show the EUCE. When something is defined as an EUCE, that portion of the common elements is reserved for use by the unit that is attached to the EUCE. For example, a back yard or balcony that is defined as an exclusive use can only be used by the occupants of the unit it is attached to. No one else in the condo can use that unit’s back yard/balcony. However, that does not mean that the back yard/balcony belongs to the unit owner or that the unit owner can do what they want in relation to the back yard/balcony. The back yard/balcony is still a common element which is owned by the condominium Corporation and all owners collectively. The condominium Corporation can make rules to regulate how that back yard/balcony is used. For example, a condo Corporation may ban the ability to smoke in the back yard/balcony. They may not allow storage of materials other than seasonal furniture. They may not allow you to build a fence, deck, or other structure. An owner or occupant, even if they have the exclusive use of a certain part of the common elements, must still abide by the Rules, Bylaws, Declaration, and the Act in relation to the EUCE. Owners do not get to set the rules for the EUCE attached to their unit. The enforcement of a breach of any of the condo’s rules in relation to an EUCE is carried out in the same manner as if the a breach occurred within the unit or on the common elements generally. While some owners may be confused about their rights when it comes to EUCE, Boards and Property Managers can take proactive steps to avoid breaches of the rules in relation to EUCE by educating owners about EUCE. It is important to remind owners that EUCE are still common elements and as such they can not make any changes to the EUCE unless s.98 of the Condo Act is followed which requires Board approval for the change as the first step.

Sonja Hodis
Hodis Law