Law Times

Page 10 June 10, 2013 Law Times • FOCUS Do cops need warrants to search condo communal areas? BY CHARLOTTE SANTRY Law Times P olice need a warrant to search condo units but what about a building's communal areas? In April, the Superior Court of Justice disallowed evidence of an "impressive" Ottawa drug haul because police gathered it after trespassing "in cavalier fashion" on condo stairwells and in storage units. The case, R. v. White, concerned a pub bouncer, Merith White, who faced charges including possession of cocaine and marijuana for the purpose of trafficking. Police suspected White of stashing illegal drugs at his condo for his boss, Yanni Papadolias. A detective entered White's condo building by following a mailman. He found White's fenced storage locker in the basement of the building and saw it contained hoses, suitcases, a cylindrical filter, and a blower fan that he believed could all be used in a grow-op. He later entered the building two more times without permission. On the second occasion, he hid in the stairwell near White's condo unit and followed the suspect's car. Police later pulled it over and found it to contain marijuana and cocaine. Police used the evidence to obtain a search warrant for White's apartment where they found crack cocaine, large quantities of cocaine, a passport, packing slips, a large digital scale, and a safe taped with carbon paper, something known to interfere with X-rays. But the court only found White guilty of simple possession of cocaine and fined him $500. This is because police obtained the evidence used to justify the search warrant through trespassing, something that was someone's backyard at a $500,000 propcontrary to s. 8 of the Charter of Rights erty but it seemed you could just wander and Freedoms, stated the April 5 decision around a condo building whenever you written by Justice Paul Lalonde. felt like it," he says. "It's about time that The trespasses were "not in an area someone who owns a condo is treated the ordinarily frequented by the public," same as someone who owns a mansion." Lalonde noted, suggesting a parallel beThe decision suggests there might tween a secured parking garage and storhave been a different interpretation of the age units in a condo building as both are law had the police entered an apartment secure areas for owners and require a key building. "The officers momentarily foror access card to enter. got the distinction between a condominLalonde chastised police, suggesting ium building and an apartment building," ignorance of the Trespass to Property Act wrote Lalonde. couldn't equate to good faith. "The s. 8 But he doesn't expand on how the Charter breaches were hardly inadvertent Police likely need a warrant to access or technical. They were committed in a cav- any communal areas in condos, says rights of apartment tenants would differ from those of condo residents or owners. alier fashion by officers who failed to turn Barbara Holmes. Barbara Holmes, a condominium lawyer their minds to well-settled law," he wrote. Although there was a public interest in trying a case at Heenan Blaikie LLP, says this leaves a potential grey area. However, the law is increasingly emphasizing citizens' on its merits, "the long-term impact of allowing into evidence the fruits of warrantless searches conducted in fla- privacy rights, she says, citing the 2012 Appeal Court of grant and wilful violation of the right to privacy would Ontario decision in Jones v. Tsige. That case didn't deal be to bring the administration of justice into disrepute," with real estate issues but recognized there was a tort for invasion of privacy. he added. Holmes believes White shows police wishing to access The Crown had submitted that White had no reasonable expectation of privacy in the common areas of the condo all communal areas, even those outside a condo building building. It relied on a 2008 case, R. v. Nguyen, in which the such as in a shared garden, must obtain a warrant. "It's accused didn't have an ownership interest in the condo com- analogous to standing in someone's front yard," she asserts. She would apply the same principle to lobbies and plex or a unit and wasn't a resident at that address. By contrast, White had an ownership interest and resi- hallways as "most condo buildings aren't open to everyone; you normally have a security key or a concierge." dency at the property. The Public Prosecution Service of Canada filed a notice Mark Ertel, who represented White at the hearing, says the decision is important in recognizing the privacy of appeal on April 30. A spokeswoman declined to comLT rights of condo owners. "It would be a trespass to set foot in ment on the case. Rural, recreational transactions a minefield for lawyers BY CHARLOTTE SANTRY Law Times A s cottage season kicks off, lawyers are being warned of the potential dangers involved in rural and recreational property transactions. Cottages and ski chalets may signify a peaceful bucolic retreat to many property owners but can be a minefield for lawyers dealing with the distinct issues presented by their sale and purchase, according to LawPRO's Mitch Goldberg. Goldberg, who works in the specialty claims department, was speaking at a May 13 event organized by the Ontario Bar Association. "There are so many pitfalls and issues," he said. "You really have to be on guard," he added. The most common causes of rural real estate claims are communication issues and inadequate investigations followed by clerical errors. Very detailed investigations are necessary to identify the hurdles involved in something that appears relatively simple on the surface, such as building a boat dock, Goldberg warned. An earlier session at the same event dealt with the plethora of considerations when dealing with boathouses and docks. Quinn Ross, a real estate lawyer based in Goderich, Ont., said it was no longer realistic for clients to quietly carry out work over a weekend in the hope that a municipality would allow it. "The days of asking for forgiveness as opposed to permission are simply over," he said. The development and sale of shore road allowances involve different regulations in each municipality, a fact that adds to the burden of lawyers charged with overseeing a transaction. It's also important to conduct meticulous investigations for clients who buy properties they may wish to develop at some point in the future as there may be restrictions on the land use. "The fact that fewer clients are getting surveys now because they will choose to get a title insurance policy doesn't mean that any discussion around survey issues goes out the window," said Goldberg. "You still have to have a discussion as to what title insurance covers and doesn't cover. "And, of course, you have to have the discussion: Is there a particular situation, in this particular property, that may [mean it's wise] to get a survey even though there may be coverage under a title insurance policy? Because your client may not want to buy a claim under a title insurance policy. They may want to know the real lay of the land before they complete the purchase." There are even numbers of claims spread across lawyers with different call dates, a fact that shows the problem isn't unique to those new to the profession. Those with one to five years of experience make up 13 per cent of claims. That's a percentage point behind those who have been practising for 31-35 years. Despite hopes that the increased prominence of title insurance would lead to fewer real estate claims overall, they've been steadily rising since 2001 to almost 700 a year from about 450. Figures showing a dip since 2009 don't necessarily signal a trend as claims often take a few years to come through, Goldberg advised. The complexity of rural and recreational property transactions often requires those with specialist experience, he suggested. "If all you do is deal with residential real estate situations in the City of Toronto, think twice when a client comes to you about taking on a recreational property in the Muskokas," he said. "It may be a better idea to call someone you know in that area . . . so they can deal with pitfalls that may arise." 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