legal corner condo cases across canada Information provided by “Condo Cases Across Canada” an online library of condominium decisions from across Canada - published by the Canadian Condominium Institute, National Chapter. Special thanks to Editor James Davidson LLB, ACCI, FCCI of Davidson Houle Allen LLP Condominium Law in Ottawa.
Condominium Corporation No. 042 5177 v. Kuzio (Alberta Court of Queen’s Bench) October 21, 2019 21/10/2019 – Jurisdiction Alberta Part 68 published on 01/12/2019 Court grants interim injunction to prohibit short-term occupancies The by-laws or the condominium corporation said that the residential units could be used only as single-family residences and not for commercial purposes. The Respondents were permitting members of the public to occupy their units on a short-term basis. The condominium corporation claimed that this contravened the by-laws, and applied for an order prohibiting these occupancies. In the meantime, the corporation applied for an interim injunction (to prohibit short-term occupancies), pending the hearing on the main application. The Court granted the interim injunction. The Court held that the condominium corporation had “very strong arguments” and therefore would likely succeed on the main application. The Court also held that failing to enforce the corporation’s by-laws, even on a temporary basis, would cause irreparable harm. Among other things, the Court said:
In my opinion, the Corporation has a strong argument that Customers are not Tenants within the meaning of the Bylaws. Under s. 32(7) of (the Condominium Property Act), the Act prevails over the Bylaws and therefore must be read with the Bylaws. The Act contains elaborate provisions respecting the rental of units (s. 53) and corporation remedies respecting tenants (ss. 54 -56). Because of the fleeting duration of Customers’ stays, the remedial provisions of the Act could not practically apply respecting Customers’ occupancy. Moreover, the evidence did not disclose that the Respondents complied with s. 53(1) (notice to the Corporation). If the Bylaws had the effect of prohibiting or restricting “leases” or “dealings” with units as contemplated by s. 32(5) (of the Condominium Property Act), those bylaws would be ineffective. The nature of the occupancy of units by Customers, in my view, strongly supports the characterization of the arrangement with the Respondents as being a licence only. Customers occupy the premises only briefly. They do not take on the trappings of tenants under the Act or Bylaws. Their occupation is like that of a person who stays in a hotel room. Rather than understanding the relationship as being a very short lease, the relationship is better understood as being a very short stay in the functional equivalent of a very small hotel. I find that the Corporation has a strong argument that the Respondents’ arrangements with Customers result in licences, not leases. Subsection 32(5) precludes a bylaw from prohibiting or restricting not only devolution, transfer, lease, or mortgage of units, but also “other dealing” with units. Do short-term licences fall within “other dealing” in s. 32(5)? The Respondents do have an argument that a licence relating to a unit is a “dealing” relating to a unit, and so is protected from bylaw Insite to Condos, Spring 2020
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