Condo hell

Elizabeth Dyke’s blissful experience with condo ownership lasted for 13 years, right up until her upstairs neighbours ripped out their carpeting and installed hardwood floors. “The very next day, I could hear somebody walking in high heels right from my master bedroom, through the living room, down the front hall and to the door,” says Dyke, a Toronto employment lawyer who had enjoyed condo life so much, she bought a second unit in her building to use as a home office. Nuisance turned to nightmare when Dyke’s neighbours moved out and rented their condo to a dancer, who turned the unit into her full-time dance studio. “It sounded like a jackhammer on your head,” says Dyke. “That’s when I thought, ‘I’m a reasonably successful lawyer and I’m living like this? What’s wrong with me?’ ”

For months, Dyke complained of the noise to the property manager and then to the condo board. When the thundering sound of dancing continued unabated, she called police. Instead of addressing the problem, the condo board launched a campaign against Dyke and, according to court documents, accused her of operating an illegal law office in the building. A board member fessed up to leaving an anonymous note on Dyke’s door accusing her two dogs of disturbing neighbours. Dyke and her daughter finally packed up and moved into a rented apartment down the street. Last year, after two years of court battles, an Ontario judge fined the condo board nearly $60,000 for failing to enforce its own noise regulations. Dyke “is entitled to live underneath a residential apartment unit and not underneath a professional dance studio,” wrote Ontario Superior Court Justice Edward Morgan in ordering the condo management to notify Dyke’s upstairs neighbours that “adequate additional floor covering” was required. The dancer eventually moved out, but the legal battle is far from over. Dyke is preparing for a new round of court cases to determine what the court considers “adequate additional floor covering.”

Dyke’s story is just one of many from the front lines of Canada’s condo wars. As thousands of homebuyers flock to condos for the promise of affordable home ownership and carefree living, they’re learning that life in a condominium is far different from the suburban houses where so many of us were raised.

Never mind that owning a condo usually means sharing your walls, floors and ceilings with your neighbours. Canadian condos are rife with internal politics, neighbour infighting and power struggles stemming from the complicated network of condo boards, owners, investors, tenants and property managers.

In some buildings, the rule book governing what owners can and can’t do with their property can span 70 pages. Disputes over issues such as pets, squeaky floors and visitor parking spots are escalating into epic and costly court battles. “They are little fiefdoms,” says Don Campbell, senior analyst with the Real Estate Investment Network, who owns several condos in B.C. “Each one has a king. Many of the people who get elected to the boards have time on their hands, and this is the only place in their world where they have power. Unfortunately, that starts to go to their heads.”

Granted, neighbour disputes existed long before we invented condominiums. (Just ask the Hatfields and the McCoys.) But Canada’s condo boom is ushering in a new chapter in the long history of Canadian home ownership, one that involves an unprecedented amount of shared space and collective decision-making. In condos, the old adage that “good fences make good neighbours” no longer applies. “It’s pretty hard to have a fence when you have to walk by a problem neighbour just to get to the elevator,” says June Donaldson, a veteran condo owner and former condo board member from Calgary. The condo boom isn’t just reshaping our skylines; it’s changing how we live. Are Canadians—long accustomed to detached houses and backyards—ready for a world where being a happy condo dweller means accepting that we’ll have to give up some of our personal freedom, and that our neighbours may always be too close for comfort?

As a legal entity, the condominium (sometimes called “strata”) has existed in Canada for more than 40 years, ever since a boom in high-rise construction and innovations in property law essentially allowed developers to privatize the air space above the ground and carve it into small blocks that could be sold for profit. Many of the original condos were designed to encourage low-income Canadians living in rental housing in big cities to embrace home ownership, while the middle class continued its inexorable march to the suburbs. The condo boom of the past decade has, however, been marked by a renewed interest in urban living, driven by increasing numbers of Canadians who want to live closer to where they work, along with a cultural and environmental backlash against suburban sprawl, with its commuter traffic and car-induced smog. The rising number of people putting off marriage and children, as well as seniors living longer, has also helped fuel demand for smaller homes.

To understand how quickly we’ve shifted from detached homes to condominiums, consider that condos made up less than 10 per cent of all homes built in our 10 largest cities before 1981, but more than a third of those built in the last decade—around 413,000 out of roughly 1.2 million new homes. While the majority of those are clustered in the big cities—Toronto, Montreal and Vancouver—condominiums are going up everywhere from St. John’s to Regina to Victoria. Cities as different as Guelph, Ont., and Whitehorse are now building more condos than single-detached houses. More than 1.6 million Canadian households, or 12 per cent, now live in condos. Despite the focus on the investor market, close to 70 per cent of the people living in condos are owners, not renters.

The shift toward condo living is both more recent and more profound in Canada than it has been south of the border. The U.S. National Association of Realtors estimates that, last year, 77 per cent of first-time buyers in the U.S. purchased detached homes, compared to just 53 per cent of Canadians. Meanwhile, 17 per cent of Canadian buyers say they intend to purchase condos this year, compared to just seven per cent of American buyers. We can thank our red-hot housing market for the difference: The average Canadian house price last month was $406,372, compared to a median of US$189,000 in the U.S. (The average price of a condo in Canada was $312,800 in February, compared to US$187,900 in the U.S.) Skyrocketing house prices are forcing more first-time buyers into condos in order to get a foothold in the housing market. Some aren’t prepared for the life they encounter there.

One of the biggest sources of conflict in condos stems from the fact that developers pitch buyers on the benefits of a worry-free lifestyle without all the responsibilities of home ownership. While it’s true that condo living usually means that owners pay maintenance fees so that someone else can shovel the driveway and mow the lawn, that act of sharing general household expenses with your neighbours creates its own set of responsibilities. The result is that most condominiums have been turned into corporations with their own shareholders and boards of directors responsible for multi-million-dollar budgets.

In some buildings, just finding enough owners willing to take on that kind of responsibility is a challenge. “You’re selling someone on a carefree lifestyle and then, in the same breath, you turn around and ask someone who didn’t want the responsibility of looking after a detached home if they mind looking after 300 homes,” says Tom LePage, a former condo property manager turned consultant in Collingwood, Ont. However, once they get into power, LePage says many condo boards end up operating less like businesses and more like mini-governments. Owners campaign for election to a volunteer board, raise taxes and set the rules for how other owners can behave—often going to great pains to police their neighbours.

“It’s gotten to a level where people who are on these boards take it as: ‘It’s my job to make sure that you’re in your unit at 10 p.m., the lights are out and I want to know you’re in your room,’ ” says Bernice Winter, who runs Condo Check, a Calgary company that consults with condo boards and reviews condo documents on behalf of prospective buyers.

That has sparked pitched battles among condo boards and owners. Don Campbell, the real estate analyst, recently witnessed a shouting match between two factions of owners at a condo board meeting in Abbotsford, B.C., over how much to spend on maintenance. “You have no idea how close it came to violence,” he says. Perhaps not surprising, the people who seem to struggle the most are those who move into condos after having lived in single-family homes. “They are, generally speaking, not used to being in such close proximity with other people,” writes Vancouver condo lawyer Paul Mendes. “They also struggle with the concept of ‘common property’ and the related concept that the strata corporation can regulate the way they use their own homes.”

That’s particularly problematic because developers are churning out condos filled with one-bedroom units, which attract precisely the two demographics least accustomed to communal living: first-time buyers moving out of their parents’ basements and Baby Boomers downsizing from larger homes. Nearly 45 per cent of people living in condos, as of 2011, were single, Statistics Canada reported, with those younger than 35 and older than 65 making up the largest share of owners. Often, the two groups end up living side by side in the same building, Campbell says, and arrive with very different opinions about what condo life should look like—from Friday-night noise curfews to the need to set aside money for future repairs. “The Millennials and youngsters are going to be saying, ‘Why are we raising the condo fees to start saving for a roof that won’t be fixed until 25 years from now, when we don’t know if we’re even going to be here?’ The elders are going to be saying, ‘Well, that’s how life works; you maintain stuff,’ ” he says. “I think there are going to be some really ugly battles in the condo-board world because of how the condo society itself is going to mix.”

In some cases, it’s the older residents who resist spending money on costly renovations that appeal to younger buyers. In 2011, the Ontario Human Rights Tribunal fined the board of a condo building in west Toronto $10,000 because its ban on allowing children in diapers into a communal pool discriminated against a mother and her baby. The building had once been restricted to seniors, but had recently opened its doors to young families. The board had planned to build a separate new pool for children, but shelved the idea after many of the elderly residents balked at the cost.

Another such generational dispute played out last year in a Montreal courtroom, where Michael Rehmat, a 60-year-old long-time resident of an upscale condo building in the city’s Côte Saint-Luc neighbourhood, sued his new neighbours, a couple and their five-year-old daughter, over noise complaints. “The kid runs . . . She’s a little child,” Rehmat wrote in his affidavit. Unlike Elizabeth Dyke’s experience living below a dance studio, however, the court sided with Rehmat’s neighbours and found Rehmat’s ongoing calls to neighbours, condo board members and the police bordered on harassment. “The occupant of a multiple-dwelling unit cannot expect to live in a silent environment comparable to that of a single-family residence without horizontal or vertical dividing walls,” Quebec Superior Court Justice Pierre Tessier wrote. The whole affair cost both neighbours and the condo board $315,000.

While generational issues can cause plenty of tension, some of the most heated battles between neighbours are playing out in condos aimed exclusively at seniors. An ongoing dispute at a 55-and-over building in Abbotsford, B.C., called the Carlisle has sparked more than a dozen lawsuits between residents accusing each other of, among other things: spraying the words “cow” and “pig” on a car, throwing eggs, dislocating a resident’s thumb and tampering with a scooter. One owner accused her neighbour of taking pictures of her in the parking garage while he was hiding under a blanket in his car. The dispute reached a “depth where one would expect to find emotional children who have not yet learned the basic tenets of acting civilly toward each other, not senior citizens,” wrote Provincial Court Judge Robert Hamilton.

More common than neighbour disputes are battles between condo boards and owners over the growing laundry list of rules governing what owners can and can’t do with their property. Typically, when developers first build a condo, they write up a list of basic rules, running about two or three pages. Once responsibility for those rules is handed over to a condo board, however, that list can swell to anywhere from 20 to 70 pages, depending on the building and personalities involved.

Most of the rules are designed to protect property values and keep maintenance costs low, says Alberta condo consultant Winter. Banning condo owners from storing their custom $3,000 bikes inside their units might seem excessive—until board members start getting calls from neighbours angry that bikers are tracking dirt across the hallway carpets, she says. Winter recently helped a condominium that was drafting a rule requiring owners to hire only licensed and insured contractors to do work inside their units. The restrictions came about after an owner hired an uninsured painter who left a balcony door open to clear paint fumes. In the brisk Calgary winter, a pipe burst in the building, sparking a battle over who would pay for the $75,000 in damage. In the past year, human rights tribunals across the country have mediated disputes over whether a condo board’s ban on putting Christmas decorations on the outside of unit doors violated an owner’s freedom of religion (yes), whether a condo owner was allowed to have a hot tub because of a disability (yes) and whether a townhouse condo owner should be able to keep her backyard trampoline because it alleviated the anxiety suffered by her three children (dismissed because the condo board said it was still debating a ban on trampolines). Last year, an Ottawa family was evicted from their rented condo after neighbours complained of noise from an indoor trampoline used by their autistic son.

Boards don’t often realize that strict rules, like bans on children or pets, can actually lower property values, since they shrink the pool of prospective buyers, says Winter. Having owned condos since 1977, including serving as president of a condo board, June Donaldson figured she knew everything there was to know about how condo rules worked. Then she tried to sell her Calgary condo to a couple who wanted an exemption to the building’s rules against pets. Donaldson herself had been given written permission to own a small dog for 17 years. But instead of rubber-stamping the exemption, the board abruptly revoked Donaldson’s dog privileges, which, under the condo bylaws, they were allowed to do with 15 days notice. The kicker, says Donaldson, is her buyers didn’t even own a dog; they just wanted to be able to take care of their daughter’s dog when she was away for work. The board hired a lawyer to defend its decision and the buyers walked. Donaldson eventually sold her condo for close to $60,000 less than the original offer.

“I was a pretty seasoned condominium owner, and that situation knocked the feet right out from under me,” she says. “The irony is that I helped pay the board’s legal fees so that they could do a disservice to me.” The experience prompted her to co-found the Alberta Condo Owners Association last year as a way to give owners more of a voice in helping to influence provincial condo policy.

Courts have generally given condo boards wide latitude to draft and enforce their own rules, with judges usually taking the stance that the rules are reasonable unless an owner can prove they’re not, says Toronto condo lawyer Audrey Loeb. “Some people may not like it, but that’s part of the freedom you give up when you move into a condo,” she says. “You have all the obligations of a homeowner and all the obligations of a tenant, because condos are really a combination of the two.”

As much as she counsels condo boards to stop enforcing their rules so zealously, Winter has also noticed that one of the best-run buildings she’s come across also happens to have some of the stiffest fines for bad behaviour she’s ever seen. The one upscale, 500-unit condo in Calgary collected $80,000 in fines from owners in one year. Owners whose dogs damage common property are slapped with a $950 fine. Violating the building’s noise bylaw costs $1,500. (One owner who liked to throw parties in his unit paid $15,000 in noise-related fines before selling his unit.) “I was horrified when I saw their fining policies. I told them, ‘Please don’t give this to a buyer; they’ll never buy in here,’ ” she says. “But I can tell you, if someone is walking through the halls with the dog, it’s on a leash. People are saying hi to each other. The building is spotless.”

In extreme cases, condo boards have been able get a court order forcing owners to sell their units for being, essentially, very bad neighbours. In 2012, the B.C. Supreme Court ordered Rose Jordison to sell her condo in Surrey after her adult son had terrorized their neighbours by screaming obscenities, spitting, blocking their way in the hallway and throwing water at them from his balcony. “The old adage, ‘A man’s home is his castle,’ is subordinated by the exigencies of modern living in a condominium setting,” wrote Justice Richard Blair. In the wake of more and more lawsuits, mediators specializing in condo disputes have sprung up, charging as much as $800 an hour to settle disagreements over barking dogs and crying babies. Despite the cost, mediation is usually the cheapest option, costing an average of $12,000, compared to the $222,000 it typically costs to go to court, condo lawyer Armand Conant wrote recently. Governments are only now trying to come to grips with the monster that land-use restrictions and density targets have created. Ontario and Alberta are investigating proposals to license condo-property managers and create tribunals in the model of landlord-tenant boards to settle condo disputes. Nova Scotia created a condo dispute service in 2011. Campbell thinks there should be a government agency that can help owners tame or remove a rogue board member. As it stands, most provincial laws allow courts to appoint an administrator to take control if an entire condo board has become dysfunctional, but leave it up to boards to write their own rules when it comes to removing a board member.

Other long-term consequences of Canada’s condo boom are just now starting to surface. The growing number of seniors living alone in condos, often without any family or friends nearby, are creating serious problems for condo boards, says Loeb. She’s working with a board trying to deal with an elderly resident who set fire to her condo. “She stood in the unit while it was burning and she didn’t have a clue. We can’t let her back in the building; she’s a serious threat to safety. How does a condo corporation become responsible for dealing with somebody with dementia?” Hoarders, and people who buy condos and then turn them into rooming houses—stufﬁng 12 people inside a two-bedroom unit—are another major concern, she says.

In Ontario, many older buildings, constructed before laws requiring boards to create reserve funds were enacted in 2001, are now facing massive budget shortfalls and costly repairs after decades of neglect. Many of those buildings were condos aimed at low-income homebuyers who have struggled with the huge costs associated with maintaining a large highrise. Municipal governments in the Greater Toronto Area have even condemned portions of some older condo developments, such as underground parking garages, because of serious structural problems. Some older buildings now have trouble getting condo insurance, while banks have refused to finance mortgages in buildings known to have problems. “Some of these buildings have budgets of $3- to $4 million a year, and some people can’t read a balance sheet or a financial statement,” she says. “You’ve got people who think they’re serving their community by keeping the costs down, and they don’t do the proper long-term repair and the buildings just continue to deteriorate.” Loeb estimates that as many as 20 per cent of condos in the Toronto area are facing problems so severe that, in some cases, the province will be forced to step in and help residents dissolve the condominium corporation and sell the buildings. Courts have yet to face legal battles between owners who want to sell the building and those who don’t, but Loeb believes those cases are coming. “This is a terribly politically incorrect position to take,” she says, “but the truth is that people who don’t have extra money shouldn’t be living in condominiums.”

Don Campbell spends much of his time now worrying about what will happen to today’s shiny new buildings, many of them stuffed with 500-sq.-foot units, if Millennials decide they no longer want to live in cramped one-bedroom condos when they start families. “We have to be very cautious we’re not building future one-bedroom ghettos,” he says.

Whether our condos can eventually evolve to become true neighbourhoods, or communities like the suburbs of the past, is an unanswered question. Unlike the old Welcome Wagon of the 1950s, people today are less interested in spending time with their neighbours, says Dalhousie University urban planner Jill Grant. “The rhetoric about condo-as-community seems to suggest that community is formed by virtue of close proximity,” says Leslie Kern, a geography professor at Mount Allison University. “But we know that it’s just as likely to cause conflict.”

Conflict is inevitable when so many people live so close together. As governments continue to limit the land available for development and Canadians continue to reject the suburbs in favour of urban living, things are likely to get worse before they get better—if they get better at all. A decade into Canada’s condo boom, we’re only now coming to terms with the fundamental ways the condo is changing how we live.

At 69, June Donaldson bears the scars of fighting in the trenches of the condo wars. She’s still a fan of the condo lifestyle and loves the condo townhouse community where she now lives, but worries that we need to start addressing the downside of shared living. “If we don’t get busy and start talking about what the issues are and what are some of the reasonable fixes, then everybody loses,” she says. “We want to live the joys of condominium life, not the nightmare of it.”

My advice when living anywhere whether in a condo, or a neighborhood with an HOA is to cruise the neighborhood and take a few pictures unobtrusively, make sure the camera has a time and date stamp feature.

If you even get in a fracas with the board about some ‘violation’ they accuse you of, you can reply back to them with evidence of their arbitrary “constructive endorsement” and threaten them with your lawyer who just loves these kinds of lawsuits.

That is the risk of living in an apartment complex, except you own it in a condo.

Noise, obnoxious neighbors, parking issues, the whole ball of wax.

These are not the same as single family homes, and people are much less considerate of others these days.

Having lived in a condo for several years, and also having lived in an apartment, I could not see much of a difference in the quality of life except the condos didn’t attract drug dealers. But every problem I ever had in an apartment, was harder to deal with in a condo. An apartment I could break the lease and move, a condo you were stuck with it until you sold it, which is not always as easy as it sounds.

Crap like this is a major reason why I will not rent anymore, nor will I consider ever living in a Condo or HOA. Quite apart from the idea of paying someone else for the privilege of them telling me how to live in my dwelling, and all the restrictions, there is the (mentioned) problem with sharing walls, floors, and ceilings with people who are not automatically going to consider the effect they’re having on the neighbors.

Detached home is much more preferrable-—even if its a cheap mobile home. There’s plenty enough neighbor noises to deal with in those too but at least there’s no shared walls or halls. Some people want to retire in a city—not me —I’ll take some land and some distance from neighbors and find a way to maintain a small home myself without a bunch of obnoxious and interfering,annoying expensive rules from tyrant yahoos.

Small condo projects are usually a nightmare. Not enough money coming in to hire management, and not enough neighbors willing to volunteer to do the necessary labor. Then at least half of them will think their obligation to their neighbors is fulfilled by making lists of things “we” (which never seems to include them) need to do.

Shortly before I sold my unit, one of the neighbors decided “we” should cut down a tree in the front courtyard. The neighbor who loved gardening also loved the tree. When Ms. Complainer got the majority vote, he packed up the shovel, pickax, and saw, and left them outside her front door with a note saying that he wasn’t volunteering to cut down the tree, and since it was her idea, she could do it. It’s been 15 years since I escaped from that place, and I drop by every once in a while to see if the tree’s still there. It is.

I live in a very nice condo complex. It consists of 4 buildings, with 24 units per building. The neighbors, luckily, are all nice, we have hospitality rooms and have parties. The men play cards, the women go to once a month luncheons. There is an inner courtyard with a nice pool.

Our current board is great and will remain fairly intact for quite a few years. They are frugal, but a couple of the men know construction and keep our grounds and buildings in tip top shape. Dogs are allowed (small ones) but must behave. I have one above me but it is quiet. I seldom ever hear it and the doggie is a shy cutey. Cats are also allowed (2 max). All age groups allowed, but most are older. Although one lady just had another baby. The kids get lots of attention from the older adults.

Move-ins and outs are monitored. Huge balconies and up to when the bottom fell out of the market, good resale value. It’s picking up again. Once we get rid of Obama, it should shoot up nicely to where it once was. Oh, and the owner above me put in wood floors. I was afraid what that might mean, but barely any noticeable difference in noise. Our buildings are very soundproof.

The grounds are lovely with large old trees, lots of flowering bushes and magnolia trees, evergreen trees for greenness in winter, flowers and the lawn is landscaped beautifully. Close to everything, doctors, shopping, restaurants, good highway systems nearby, low crime rates; can’t ask for much more.

So not all condo living is a pain in the derriere. One just has to do one’s homework before buying, get word of mouth testimonials from those already living there, and then enjoy the stress free living with no shoveling snow in the winter (Chicago western suburb here) and hopefully nice balconies to bask on in the summer.

Sure, I’ll take a case against a condo association or HOA, but only if it has merit, and only if a substantial retainer is paid. Yes, there will be litigation.

Associations’ defenses against evidence of arbitrary or selective enforcement include the “business judgment rule.” The property owner has to show that the board stands in breach of its fiduciary duty (good faith, loyalty, and due care).

Arguing “constructive endorsement” of another owner’s violation does not automatically excuse a similar purported violation by a party. Not only the board, but typically any owner can sue to enforce the “house rules.” Thus, a court can find against the “constructive endorsement” argument by noting that such violations were not previously the subject of complaint.

Association law has more to do with the social politics of the people in the common interest community, especially the board, than the legal rights of any one owner. It really is communism in action.

Oh, my subdivision HOA is good too, but they constructively endorse all sorts of violations. Play sets in the yards, some of them very elaborate, work trucks and vans parked on the streets and yards, and a host of other violations anywhere from overly weed infested yards to near foot-high grass in some cases.

I have pictures of all and am waiting for the day when they come calling to me about some violation I have. I’ll sue the hell out of them.

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