You Can’t Always Make Them Do It, But You Can Make Them Wish They Had!

This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.

Do you have a by-law for unsightly properties? What steps are you taking to enforce it to clean-up unsightly properties in your community?

The last Legal Corner article I wrote was focused on derelict building by-laws. I discussed the local government’s authority to repair or demolish dangerous buildings if the owner has refused to undertake repairs. Continuing with that theme, I will focus now on the authority of the local government to order the clean-up of an unsightly property, and, if necessary, clean it up and add the cost to the property taxes.

The Municipal Act gives Council broad authority to pass by-laws to ensure that it can meet its purpose as a municipality: to provide good government, to provide services, facilities or other things that are necessary for the municipality, and to develop and maintain safe and viable communities. Council can use this authority to pass by-laws with respect to various matters, such as the activities or things in or on private property. These by-laws may include the requirement that lands be kept in a safe and clean condition and provisions in respect of things that, in the opinion of Council, may become a nuisance, such as weeds, odours and unsightly property. If an individual is found to be in contravention of the by-law by, for example, allowing his or her property to become overrun by weeds and rubbish, the municipality has authority to execute a written order requiring that person to clean-up their property.  And clean-up remedies are available if they don’t.

Various municipalities across this province have enacted by-laws for this very purpose. Some examples are the Rural Municipality of Oakland’s By-Law No. 1257/05, the Rural Municipality of Ste. Anne’s By-Law No. 4-2010, and the Rural Municipality of Cartier’s By-Law No. 1525-00. The Rural Municipality of St. Clements enacted a similar by-law – By-Law No. 16-2007 – known as “Being a By-Law to Maintain Property and to Regulate Nuisances, Derelict and Abandoned Vehicles and Unsightly Property Within the Municipality.” The enforcement of this by-law was the basis for a recent Manitoba Court of Appeal decision of St. Clements (Rural Municipality) v Zucawich (2013 MBCA 65), where the owner of the property in question appealed to the courts challenging the municipality’s authority to issue and enforce a clean-up order against his property.

St. Clements began receiving complaints in 2005 regarding the state of an owner’s property.  Attempts to have the owner voluntarily clean-up his property failed and as a result, on February 13, 2009, St. Clements issued a clean-up order with a deadline of March 15, 2009.

By November 19, 2009, the property remained in an unsightly state and St. Clements then issued a second clean-up order with a deadline of December 19, 2009. Contained in this order was an explanation of the appeal process (to Council) and, as well, a warning that failure to comply with the order would result in St. Clements arranging for the clean-up at the owner’s expense. The authority for a municipality to step in and perform the clean-up itself, at the expense of the owner, is granted under The Municipal Act, which states that once the owner has been given reasonable notice to remedy the contravention and has not done so, a designated officer of the municipality may then enter the property to enforce the order authorized in the by-law.

The owner did not follow the November 19, 2009 order either.  Nor did he appeal it to Council.  On June 23, 2010, the designated officer(s) of St. Clements arrived at the property to perform the clean-up. The owner promptly told them to leave, preventing them from completing the clean-up.

St. Clements proceeded to file an application with the courts for a restraining order, which would restrain the owner from refusing St. Clements entry onto his property to conduct the authorized clean-up. St. Clements was successful in its application; on March 3, 2011, a judge issued a restraining order against the owner and during the week of November 7, 2011, St. Clements  was finally able to perform the clean-up of the property.  Apparently it was a real mess.

However, the story does not end there. Although the clean-up had already been completed, the owner proceeded to appeal the judge’s decision, to the Manitoba Court of Appeal.  There remained the issue of the cost of the clean-up that he was now required to pay to St. Clements.

On appeal, the Court of Appeal agreed with the lower court’s decision and emphasized the broad powers granted to municipalities under the legislation to expeditiously enforce its by-laws. The Court held that St. Clements had properly followed the process outlined in its by-law and that the lower court’s judge was correct in restraining the owner from preventing St. Clements from performing the clean-up.

Neither the lower court, nor the Court of Appeal, were impressed that the owner had not attempted to appeal the original clean-up order issued by St. Clements to the local Council in accordance with the appeal process outlined in the by-law. This process provides that an individual may appeal an order “at any time before the time for compliance with such order.”

Upon receipt of an appeal, Council would have been required to hold a hearing within 40 days and a notice of the hearing date would have to be issued to interested parties no later than 5 days before the hearing was set to take place. Once the hearing had taken place, Council would have been required to serve notice of its decision “forthwith” upon interested parties to either confirm, vary or set aside the order. Not only is this appeal process explicitly outlined in the by-law, St. Clements had actually provided the owner with the details of the process at the time it issued the original order. Had the owner followed the appropriate appeal process, the matter would have come before Council who, the Court noted, was the proper forum for determining such an issue.  For whatever reason, that’s not the route the owner chose.  Having failed to do that, his challenge on the validity of the order before the courts failed.

This recent decision from Manitoba’s highest court reaffirms the local government’s authority to step in, order, and, if circumstances warrant, carry out the clean-up of a property that is unsightly, unclean or causing a nuisance. As long as Council follows the appropriate steps as outlined in its by-law, as was done by St. Clements here, it has the authority to clean-up the property at the expense of the owner.  And as long as the owner follows the right process for appeal, it has the right to challenge the validity of the order.  Once all is said and done, if the property remains unsightly and the municipality has followed the by-law and its procedural requirements and the owner’s right of appeal is exhausted, unless the order has been overturned on an appeal, clean-up can occur.  And, if the owner refuses to allow entry on the land for that purpose, a restraining order can be sought and obtained from the court.

It can be a lot of work to get to the point of clean-up, but sometimes it only takes one case like what occurred in St. Clements to get the message out: “We can’t always make you do it, but we can make you wish you had!”

This article was originally published in Municipal Leader, Winter 2014 issue. 

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.