Hoarding in a Condominium

 Susana Cardoso
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We all know, or think we know, what hoarding is – the compulsive collection of random items to the point of extreme clutter that disrupts a person’s ability to use their home.
However, hoarding is more than that.
Hoarding is a Disability

• Hoarding has been characterized as an obsessive compulsive disorder that causes a person to store various articles to such a degree that the end result causes danger or damage to others.
• As a recognized disability, how a condominium addresses a hoarding issue must be reasonable and appropriate – simply enforcing the corporation’s governing documents and/or commencing a legal action may not be reasonable and or the appropriate and may lead to a human rights claim.

How to deal with the Hoarding Issue

• How is Hoarding discovered in a Corporation?

• Typically hoarding is discovered as a result of some required inspection or entry into a unit, or when residents complain of odours or pests coming from a unit.

• Should a Corporation care about hoarding? YES/ABSOLUTELY, and these are the reasons why:

1. Hoarding leads to the increased risk of fire, property damage, injury and in extreme cases, death.
2. Pursuant to the Condominium Act, 1998 (the "Act") owners have a duty to maintain their unit and the corporation has a duty to ensure that the owners and occupants comply with their obligations under the Act and the condominium’s declaration, by-laws and rules.
3. Section 117 of the Act provides that 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.  It is quite apparent that hoarding may be a contravention of section 117 of the Act.
4. Failure to act may affect the availability of insurance coverage where there is a subsequent, otherwise insurable event, such as a fire.

Now that we know what hoarding is and why a corporation should care, how does a corporation deal with it?

• condominiums should act as soon as possible once hoarding is discovered.

• Before any steps are taken towards dealing with a hoarding issue, we always remind the condominium to consider its obligations under the Ontario Human Rights Code (“OHRC”).

• Pursuant to section 2(1) of the Code, every person has a right to equal treatment with respect to the occupancy of accommodation without discrimination because of a disability. 
• Corporations are, therefore, obligated to reasonably accommodate the resident with hoarding tendencies until the point of undue hardship.
• How a corporation does this is by acting reasonably and working alongside the owner to resolve the hoarding issue, until the point of undue hardship to the corporation.

• Step #1: Inspect the Unit if there is a suspicion of hoarding

• Upon giving reasonable notice, the corporation has the right pursuant to section 19 of the Act to inspect the unit.
• If the corporation is granted access to the unit, it must assess the degree of the hoarding issue to determine the urgency of the situation.

• Step #2: Upon Inspection we would recommend communicating with the Unit Owner:

• Have property management write a letter to the unit owner requiring the unit be cleaned by a set date. 
• That letter will also notify the unit owner that following that deadline the corporation will inspect the unit to ensure that the unit owner has complied with the letter. Such an inspection is usually conducted by 2 agents of the corporation.
• We note that the deadline provided to the unit owner to have their unit cleaned must be a reasonable time-frame.  The corporation must always keep in mind that hoarding is a disability and that the unit owner may require some time to clean their unit and comply with the corporation’s letter.

• If, following the letter, the unit is not cleared from clutter to the corporation’s satisfaction, the next step is to contact the Fire Department and advise them of the potential fire hazard in that unit.

• The Fire Department will usually issue a Fire Inspection Order to remediate the situation. 
• Typically a Fire Inspection Order is addressed to either the board members and/or property management - meaning that the corporation will be held liable for the owner’s non-compliance with the Fire Inspection Order, if the hoarding issue is not remediated. 
• Upon receipt therefore the Corporation must provide the unit owner with another opportunity to address the issue, failing which the corporation may have to exercise its rights under section 92 of the Act and go into the unit to do the work necessary to comply with the Fire Department’s Inspection Order.

• If or when the corporation has been refused access to the unit to address the hoarding issue, the final and only step left for the corporation is:

• to contact their solicitor to commence legal proceeding to seek an order for compliance under section 134 of the Act:
• To succeed in court, the corporation will have to demonstrate that the hoarding is to an extent of actual or potential damage or injury as set out in section 117 of the Act – to do this the corporation will require evidence to document the excessive hoarding such as pictures and affidavits.

• You may be wondering if such legal proceedings are worth it or whether corporations are successful before the courts, well we leave you with two cases that illustrate a corporation’s success:

• The first case is the case of 235 Grandravine Drive Inc. v Tereshko – in 2015 the court held that the corporation had a duty to enforce compliance with its governing documents and, in this case, the Fire Inspection Order.  When the defendant failed to comply there was a posed documented health and safety risk to the other co-owners and the building.

• The court ordered the non-compliant owner to pay the corporation all losses, liabilities and reasonable in house or other costs incurred by the corporation, including all lawyers’ account as the other co-owners should not be responsible for or bear the cost of the defendant’s failure to comply with his obligations.
• In other words, the corporation was awarded its costs on a full indemnity basis in the amount of $33,592.34.

• The second case is the case of MTCC 946 v. J.V.M., which was argued by our very own Jonathan Fine in 2008.

• Over a span of 15 years, there were a number reported fire hazards, odour complaints and pest infestations caused by a unit owner’s hoarding.
• Over the course of those 15 years, the corporation brought in cleaning and pest control companies to remedy the hoarding issue, ultimately without success.
• In this case the court found that the Corporation had accommodated to the point of undue hardship, and ordered the non-compliant unit owner, who suffered from paranoid schizophrenia, to vacate their unit and list their unit for sale.
• In addition, the court awarded the corporation costs in the amount of $122,094.07.