A recent decision of the Ontario Superior Court confirmed the validity of a condominium’s by-law, which was passed to control parking on the common elements. See the case of Cheung v. York Region Condominium Corporation No. 759.
Here’s my summary of the court decision, from Condo Cases Across Canada (which I author for quarterly publication by the Canadian Condominium Institute).
The condominium’s parking was not originally allocated to any of the units. The condominium corporation passed a by-law to authorize the corporation to lease four common element parking spots (per unit) to each owner.
One of the owners had leased three units to a restaurant operator. That owner asserted that the restaurant should be entitled to make greater use of the parking (particularly during the restaurant’s busy times), in part to satisfy the applicable zoning requirements. That owner asserted that the by-law was unreasonable, oppressive and outside the corporation’s authority.
The Court disagreed, and ruled that the by-law was valid and enforceable. The Court said:
“I understand that Ms. Cheung had an expectation that her tenant would be able to use “all” the shared parking spots. That had been the situation prior to 2009. Her material is replete with assertions that for many years parking had been on a “first come, first served” basis. First come, first served appears to mean, in practice (and in Ms. Cheung’s expectation) that the patrons of the restaurant could use every single un-allocated parking spot. That, of course, is not a legitimate or a reasonable expectation. Indeed, it is what led to the parking problems in the first place.
Ms. Cheung’s real complaint, with respect, is not that the Board treated her differently from the other owners. [Her] real complaint is that the Board did not treat her differently from the other owners. In essence, Ms. Cheung says that the board has acted unfairly and oppressively by taking away her special extra parking privileges. That is no basis upon which to grant a remedy.”
I understand that this decision is under appeal – so there may yet be more to this story.
However, the moral of the story, up to this point, is as follows: in cases where parking was never allocated to the owners under the terms of the Declaration, a by-law may be the answer!
For more information about by-laws and common element parking spots, contact us.