CONDOCENTRIC: He Said, She Said - Let The Children Play

On December 28th, 2009, the owner of a condominium townhouse unit in Ottawa finished construction of a snow fort for his two children, aged 2 and 3 years, on the exclusive use common element area in front of his unit. The snow fort was 3 metres high and was reported to obscure the main floor of the townhouse unit.

Not surprisingly, property management delivered notice that the snow fort must be taken down. This issue evoked a lot of discussion concerning how condominiums operate. We asked Patricia Elia and Richard Elia, two condominium lawyers, to comment. This does not represent their definitive opinion on the issue, but rather considerations from both sides of the argument.

Richard:  What’s the big deal about building a snow fort?  It was an engineering feat. It is nice seeing a parent who wants to get out with his children once in a while. That’s one of the problems with society today, no sense of responsibility for ourselves. We claim to live in a free country, but we can’t even build a snow fort in our own yard. Rules have to be reasonable … and we are talking about kids playing in a snow fort. People get hurt everyday just crossing the street. Children could get hit by a car on common element roadways. There are no traffic guards or condo police standing out 24/7 to slow down cars that speed. Perhaps we should just encourage children to stay inside, watch TV and play video games and contribute to the obesity problem that is plaguing society today; or have the father sign a waiver taking on all responsibility. But where does this stop? Do you tackle avian flu by banning birds? The simple fact remains that spring is just around the corner and this fort, and all the debate that goes with it, will soon become a puddle.  What has been eradicated are all of the memories that the children could have made, including cold hands, maybe some bumps and bruises, and all of the hot chocolate that would have been sipped during and after play. It could have even fostered a sense of community amongst residents of this townhouse condominium.

Patricia: That snow fort was huge (7 foot walls and right in front of the unit)!  Why so big?  Where is the risk management?! Imagine what could happen to a child if one of those walls were to collapse. What if someone came onto the property and got hurt? What one person does can, and will, impact his/her neighbour. In a condominium, the exclusive use common element front yard doesn’t belong solely to this unit owner, it belongs to all the unit owners within the condominium and, typically, that use is always subject to the declaration, bylaws and rules. This is a slippery slope; the next thing is a water slide in the summer.  The risk of serious injury is more likely with a snow fort that has 7 foot walls.  The condominium is deemed to be the occupier of the common elements for liability purposes regardless of whether the common elements are exclusive use. While board permission to alter the common elements is one of the criteria set out in Section 98 of the Condominium Act (and we may debate if this is an alteration), it still does not preclude the condominium from being named in a suit. Children flocking to a neighbour’s front yard could also serve to irritate other unit owners and foster friction within the community.  And there is even the possibility, given that the owner brought in snow from neighbouring properties to build this, that a sudden thaw could cause flooding damage to adjacent units. When people buy into a condominium, they buy subject to the Act and the declaration, bylaws and rules (the parameters for the community’s best interest). The Act requires that condominiums have liability insurance (Section 99); an owner may make reasonable use of the common elements (Section 116); and no condition may be be permitted to exist that is likely to damage property or cause injury to an individual (Section 117). The snow fort potentially increased the corporation’s risk of liability exposure and thus could also have affected its ability to obtain or maintain insurance coverage if allowed to stand. In all likelihood, a small snow fort in the rear yard of a townhouse would not even have been noticed for this debate. A snow fort with 7 foot walls built in a front yard is not a reasonable use because it potentially exposes individuals, property and the community as a whole to risk that could be avoided.

Epilogue:  This case emphasizes the catch-22 position in which condominium boards sometimes find themselves:  fostering a sense of community vs. minimizing exposure of the condominium and, by extension, all other unit owners, to unnecessary liability. Condominiums are the occupiers of the common elements for liability purposes under the Act.  

We are firm advocates of greater levels of communication within condominiums to avoid conflict. In this instance, communication may not have worked to prevent the snow fort from being built (unless a condominium had the foresight of establishing a rule limiting both the height and the location of snow forts), yet communication resulted in the de-escalation of this conflict. When the liability and insurance repercussions faced by the condominium were later explained to him, the unit owner agreed to take down the fort voluntarily.

The Canada Safety Council offers the following (paraphrased) concerning snow forts: consider if a child would be covered if a wall were to collapse; short walls facilitate child supervision; and if a snow fort is in a backyard, the resident has more control over who can use it. The location of a snow fort in front of a home promotes unrestricted use and resulting increased exposure to liability if walls collapse.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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