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Hoarding: Legal Steps towards a Complete

SolutionPresenters:

Robert M. Mullin, B.A. (Hons), LL.B., LL.M., A.C.C.I.

Robert W. Dowhan, B.A., LL.B.

SmithValeriote Law Firm LLP

CCI London – London, ON (Mocha Shrine)January 29th, 2013

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Overview◦ What is hoarding?

the excessive acquisition of and inability or unwillingness to discard large quantities of objects that cover the living areas of the home and cause significant distress or impairment

◦ Section 117 of the Condominium Act, 1998 Dangerous activities

117. No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual. 1998, c. 19, s. 117.

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Kitchen with spoiled food and containers.

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Kitchen with combustible material stored beside the stove.

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Kitchen with spoiled food, dirty dishes, and food containers.

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Living area with newspapers, boxes, and other paper products.

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Debris blocking the door to the unit. Safe egress/ingress concerns.

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Bedroom full of newspapers, magazines, and garbage.

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Solving hoarding may appear:

a)Lengthy;

b)Costly; and/or,

c)Legally complex.

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Done correctly, solving hoarding may be:

a)Quick;

b)Cost effective; and

c)Straightforward.

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The success or failure of a hoarding file will depend on the work done early in the file – that is, work done long before the matter ever goes to court (i.e.: property management)

Most hoarding files follow two (2) distinct paths:

a) Pre-Court; and, Robert Mullin

b) Court. Robert Dowhan

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Stage One: Pre-Court1)Initial Complaint;

2)Condominium investigation and evidence gathering; and,

3)Demand letters.

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Stage One: Pre-Court

1) Initial Complaint

Often arises from an unrelated event or occurrence (i.e. Maintenance/repair, safety inspection or municipal work order or fire code order).

Never assume – exercise section 19 of the Condominium Act, 1998:

Right of entry

19. On giving reasonable notice, the corporation or a person authorized by the corporation may enter a unit or a part of the common elements of which an owner has exclusive use at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation. 1998, c. 19, s. 19.

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Stage One: Pre-Court

1) Initial Complaint

Involve/advise legal counsel – carriage remains with property manager.

Never ignore.

Inform the board & obtain resolution.

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Stage One: Pre-Court

2) Condominium investigation and evidence gathering:

Retain an engineer;

Make section 19 entry with the property manager and the engineer to inspect the unit;

Take date stamped photographs and make notes; and,

Invite the local fire department, in writing.

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Stage One: Pre-Court

2) Condominium investigation and evidence gathering:

Initiate a brief but comprehensive engineering report;

Photographs developed/printed; and,

Transcribe property manager’s notes.

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Stage One: Pre-Court

3) Demand Letters:

Obtain a board resolution;

Initial and subsequent demand letters seeking clean-up;

Complete disclosure to unit owner, including engineer’s report; and,

Seek input on letter from legal counsel – carriage remains with property manager.

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Stage One: Pre-Court3) Demand Letters:

Always send letters via registered mail;

Always cite in detail the nature of the hoarding;

Always give expressed deadlines; and,

Always watch your tone.

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Stage One: Pre-Court◦ Municipal Involvement:

Assess their status;

Always remain informed; and,

Never forget the condominium’s abiding duties (sections 17, 117 and 119 Condominium Act, 1998).

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Stage One: Pre-Court◦ Based on the factors of threat to health

and safety, demand letters will have to give way to litigation.

◦ Board engagement and resolution.

◦ Litigation retainer.

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Stage Two: Court◦ Property manager overview memo

with attachments (the hand-off).

◦ Review of file by lawyer.

◦ Condominium litigation retainer – mutually signed.

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Stage Two: Court◦ Notice of Application

Initiates the court process

Includes: Brief facts;

Law the condominium intends to rely upon; and,

Relief the condominium is seeking.

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Stage Two: Court◦ Affidavits:

Sworn statements – form the evidence at the hearing

Typical affiants:

Property manager and/or director;

Engineer, architect or other professional.

Exhibits, exhibits, exhibits

Reports, photographs, letters

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Stage Two: Court◦ Overview of Process

Step 1

A declaration that the owner has allowed an unsafe condition or activity to exist within his/her unit (i.e. demonstrated inability to maintain the unit); and,

An order of possession in favour of the condominium to allow clean-up.

Step 2

Cost recovery (legal and other expenses)

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Stage Two: Court Application not a lawsuit

Fast-tracked process (no trial, no witnesses)

Estimated time for step one (i.e. possession & clean-up): 1 to 60 days

Adjournment(s) common for unit owner

Later court attendance to recover costs

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Stage Two: Court◦ Ensuring or completing compliance

Section 19 entry and reporting back to court.

Condominium led clean-up and restoration.

Use of contractors.

Return possession of the unit after clean-up is complete.

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Stage Two: Court◦ Cost recovery

Section 134(5) of the Condominium Act, 1998:

Addition to common expenses

(5) If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit.

◦ Lien recovery

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Recap◦ Step One: Pre-Court

1) Initial Complaint

2) Investigation and Evidence Gathering

3) Demand Letters

◦ Step Two: Court

1) Commence Application

2) Possession & Clean-up of unit by condominium

3) Cost Recovery

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Questions and Thank-you.

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