Published In

Osgoode Hall Law Journal

Document Type

Article

Publication Date

2016

Subjects

ownership; property; land; condominium; strata title; freehold; housing; anti-social behaviour; spatial organization; eviction; sale; contempt of court; mental disorder; Ontario; British Columbia

Abstract

Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (2008-2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be evicted from and forced to sell their property because of anti-social behaviour. In most of these cases, some form of mental disorder appears to be a contributing factor in the anti-social behaviour that leads to eviction and forced sale. The article then argues that these cases are not only reconstructing ownership, but also redistributing property. This is because, while the eviction and sale orders diminish the security of property for some, they enhance ownership for a great many more by providing a remedy — the physical and legal expulsion of an owner for chronic anti-social behaviour — that is not available to those outside condominium. Finally, the article argues that the judicial willingness to reconstruct ownership is a function, at least in part, of the spatial reorganization of owners. What it means to be an owner of land emerged from a context where owners were dispersed over the surface of the earth. Under statutory condominium regimes, owners can now be stacked in a vertical column many stories high. The article concludes by asking whether the judicial reconstruction of ownership is an appropriate response to the spatial reorganization of owners and the resulting challenges posed by chronic anti-social behaviour when the behaviour is frequently attributable, at least in part, to some form of mental disorder.

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