By: Ray Mikkola (CM Condominium Manager Magazine – June 2012)
WHAT CAN A BOARD DO?
DID YOU catch the last episode of Hoarders on A&E channel? For those who didn’t (and for those of you who have no idea what I am talking about), Hoarders is a television reality show that provides an inside look at the lives of people who are on the verge of a personal crisis due to their inability to part with their personal belongings.
Hoarders is now in its fifth season. The show has been nominated for a 2011 Emmy® for Outstanding Reality Program. And that’s not the only hoarding show. There’s also Hoarding: Buried Alive, which airs on the TLC channel.
These shows are popular and entertaining, and the people in each episode evoke in viewers an interesting mixture of pathos and derision.
What is not always clear is the effect that hoarding has on neighbours and the immediate community of the people that are the subjects of each 60-minute episode.
Residents of condominium communities are not entertained or amused when it is discovered that a unit owner or resident is a hoarder. Dealing with a hoarder can be expensive, aggravating and time consuming.
Hoarders or Hobbyists?
Hoarding in a unit can pose significant challenges for a condominium corporation. First, it is important to understand what I mean by hoarding.
I am not talking about a person who loves shopping perhaps a bit too much (women spend 30 per cent on clothes, shoes and accessories, according to Stats Can, 2008) or whose closet contains clothes they haven’t actually worn for years (you can count me among their number).
From compulsive shoppers to hobbyists and collectors to ordinary, run-of-the-mill pack rats, we all hoard to some degree. To be clear, hoarding is not a crime, but for a condo corporation, it presents some serious health, safety and liability issues.
I am talking about a person who suffers from hoarding, an obsessive compulsive disorder that causes that person to store various articles to such a degree that the end result (or the potential result) causes danger or damage to other residents of a condominium or the condominium property. Hoarders are unable to part with any of their possessions. Statistically, hoarding affects 1 to 2 per cent of the population.
Since hoarding is an obsessive compulsive disorder, it is also important to remember that dealing with hoarders is emotional – for them and for the condo board.
The dangers of hoarding were recently brought to light when a fire occurred at a multi-storey apartment building on Wellesley Street in Toronto. The Ontario Fire Marshal concluded that the speed of the fire was greatly affected by the storage of large amounts of combustible materials – stuffed toys and pillows – in one of the units. Some 1,500 tenants were displaced for almost a year; imagine if that had been a condo corporation. In Toronto, more than six hoarding fires have been investigated by the police department in the past year alone.
Fire is not the only danger. Hoarding can also trigger insects, rodents and mould.
Steps to Take
Let’s start with the challenges for a Board. There is no clear point at which anyone can objectively conclude that an accumulation problem has become hoarding.
The declaration and rules probably don’t contain provisions that prohibit hoarding per se or which provide the board with specific authority when hoarding is discovered. When hoarding is discovered, it is time for the condominium board to act.
Conversely, once the board becomes aware of a hoarding issue, its failure to act may affect the availability of insurance coverage where there is a subsequent otherwise insurable event, such as a fire.
Even with these challenges, fellow residents in a condominium should take some comfort from the fact that they are more likely to be able to deal with a hoarder than are neighbours of a hoarder in a freehold neighbourhood.
Although a person’s home is his castle, the Condominium Act and the declaration in particular might nevertheless pave the way for an effective remedy. Section 117 of the Act provides as follows:
No person shall permit a condition to exist or carry on an activity in a unit or in the common elements likely to damage the property or cause injury to an individual.
The board would be required to demonstrate that the hoarding was occurring to the extent of actual or potential damage or injury as set out in Section 117, but that is largely a matter of gathering evidence. Happily for boards, the section applies regardless of whether the hoarding is occurring in the unit or on the common elements, such as a common element balcony.
Fortunately, a board will not be required to proceed to act on section 117 of the Act by means of the usual mandatory mediation and arbitration route because those processes are not required where the board is enforcing a provision of the Act (as opposed to the declaration or a rule, for example). This is important because time is often of the essence, particularly where the hoarding problem is very significant and where the hoarding problem is causing damage to the property (for example, by reason of creating a cockroach infestation).
The board will also wish to have its lawyer review the declaration and rules with a view to determining if these important documents contain helpful provisions that address the particular problem facing the condominium.
For example, it is not unusual for a rule to provide that the storage of hazardous items is prohibited, or to prohibit the storage of materials on the balcony. A declaration may have useful requirements or guidelines regarding the use to which units may be put, including dwelling units, and they often contain a prohibition on the use of a unit in a manner that may result in the cancellation of an insurance policy. These provisions can be used to add colour and context to the relief that is being requested in an application to court for a compliance order under section 134 (1) of the Condominium Act.
Merely drawing the problem to the attention of the fire department or the municipal bylaw enforcement officials rarely, in my experience, produces results. They will likely be unwilling to remove items and will not usually physically deal with an uncooperative owner, even though they may have authority to do both.
For example, the fire department has extensive authority to remove goods and persons in emergencies under the provisions of the Fire Prevention and Protection Act. Furthermore, it is possible that if they find a breach of the Fire Code they may issue orders or lay charges against the directors and the manager, noting that theCondominium Act allows the condominium corporation to undertake work on the common elements and in the units where the owner is in breach of an obligation to “maintain” the unit or the common elements.
It is unclear if the Wellesley Street highrise fire in Toronto will influence a municipality and the fire department so that they would be prepared to become more actively involved when faced with a hoarder in a condominium.
Creating an ‘Airtight Application’ for the Court
In any event, it will be good evidence to add to a court application under section 134(1) of the Condominium Act that the board unsuccessfully attempted to enlist the assistance of the municipal fire authorities.
A court application by the board may be vigorously opposed by the alleged hoarder, and it will be necessary for the board to ensure that the application is meticulously prepared in all respects to make a compelling case the first time that it is before the Court.
To achieve this, it will be necessary to describe the extent of the problem (pictures are excellent in this regard, and access may be had to the unit or exclusive use common element area under the authority of section 19 of the Act).
It will also be necessary, in my view, to set out the extent of the board’s attempt to resolve the matter. Affidavits from a number of owners, including from those who are on the board and from those who are not, will assist the Court in understanding the extent of the problem and the need for assistance from the Court.
There is no “quick fix” for a hoarding problem in a condominium. Units are, after all, the homes of residents, and the law generally affords special rights and protections to dwellings. But where hoarding associated with the condominium dwelling threatens the safety of residents or to cause damage to other units and the common elements, it is the responsibility of the board to take action.