So You've Found A Dead Body
By Patrick Greco, B.A.Sc., Shibley Righton LLP's Condominium Law Group
So You've Found A Dead Body
It’s Wednesday bridge night at the condo. The party room is bursting. No surprise there – the residents love bridge night. All the regulars are in attendance, or almost all of them. Mrs. Singh, normally a bridge night regular, isn’t there. Strange, she wasn’t there last week either and no one seems to have heard from her. Something doesn’t seem right; Mrs. Singh is elderly, lives alone, and is not known to travel anywhere for longer than a couple of days.
The board and property management should not expect to be anyone’s caretaker, but Mrs. Singh is a beloved member of the condo community. What to do?
Reasonable inquiries
The next day, the property manager tries calling Mrs. Singh and knocking on her unit door. No answer. Mrs. Singh lives alone, but she does have an emergency contact on file – a niece who lives out of town. A call to the niece doesn’t yield any further information. She hasn’t spoken to her aunt in a number of weeks. Increasingly concerned, the property manager slips a notice of entry under Mrs. Singh’s door, advising that property management will be entering the unit in 48 hours pursuant to section 19 of the Condominium Act.
Two days later, the property manager, somewhat shaken, reports to the board that, upon entering the unit, Mrs. Singh’s body was found passed away on her recliner chair.
What next?
This scenario, which happens more often than expected, raises a number issues – most of which go well beyond the scope of the Condominium Act. Upon finding the body, the first step should be to notify emergency services. Seal off the area and ensure that only the police, fire department, paramedics or coroner is granted access to the unit. This should remain so until the investigation is complete.
After the commotion
Eventually the investigation will be complete and the authorities will revert control of the unit back over to the corporation. While further arrangements are being made, the corporation should take reasonable steps to preserve the deceased’s property. However, unsafe or unhygienic items, such as food or garbage, should be discarded, and unclaimed pets should be turned over to the Humane Society. If the body had begun to decompose prior to discovery, it may also be necessary to retain the services of a trauma cleanup company to prevent the spread of bodily fluids into the unit’s subflooring. Such steps would likely be justified under s. 92(3) of the Condominium Act which provides that where an owner is obliged to repair or maintain their unit and fails to do so, the corporation may do the work and charge the costs back to the unit.
Whom to trust?
At this stage, family members or friends who may have learned of the passing may wish to enter and inspect the contents of the unit. This is a tricky situation. Even though people may seem genuine, the corporation cannot know whether the deceased was on good terms with a particular friend or family member and whether access would therefore be appropriate. Accordingly, access should only be granted to the individual(s) who will be administering Mrs. Singh’s estate. The legal term for this person is the “estate trustee”; however, many people still use the older term “executor”. If the deceased had no emergency contacts and few outsiders in their life, the corporation may wish to make reasonable efforts to contact next of kin.
Ideally, whoever wishes to enter the unit would confirm their authority to deal with the deceased’s property by presenting to management a Certificate of Appointment of Estate Trustee With (or Without) a Will (formerly called “probate”). A Certificate of Appointment is issued by the Ontario Superior Court of Justice under seal. It certifies that the will, a copy of which is attached, was duly proved and registered in the court and that the administration of the property of the deceased is vested in the person(s) whose name(s) appears in the Certificate.
Unfortunately, obtaining a Certificate takes time and, practically speaking, access will be needed long before a certificate has been issued. This is because one of the prerequisites to obtaining a Certificate is providing the court with a list of all of the deceased's assets with respective values – a challenging endeavour without access. To resolve this impasse, if an individual seeking access to the unit can provide a copy of the deceased’s will and confirm by valid identification that they are the named trustee/executor, the corporation can grant supervised access to the unit. The individual should be accompanied by one or two individuals associated with the corporation and the individual should not be permitted to remove any items from the unit. Will would be issued by the court confirming that its recipient has authority to deal with the deceased’s property.
What if nobody comes forward?
In the event that Mrs. Singh’s relatives do not come forward after her passing, the corporation should take reasonable steps to contact any next of kin. If none can be located, the corporation should inquire with the civil office of the Superior Court of Justice to see if someone has filed an application for a Certificate of Appointment of Estate Trustee in Ontario. If there is no personal representative of the estate, the corporation should advise the Office of the Public Guardian and Trustee (the “OPGT”) of the situation. The OPGT will take steps to determine if the estate qualifies for OPGT administration.
Common expense arrears
The corporation must also be sure to protect its own financial interests until the estate is settled. If no one has stepped forward to pay Mrs. Singh’s common expenses and any chargebacks arising from the clean-up of the unit, the corporation should proceed to send a Form 14 – Notice of Lien to the last known address for service (likely the unit itself) listed in the records of the corporation and to any encumbrances on title. As a gesture of common courtesy, a copy should also be served on the estate trustee, if he or she is known to the corporation. If no one steps forward to pay, the corporation must proceed to register a lien, keeping mind that it must be registered on title within three months of the default in payment in order to be valid.
While it may seem a bit much to lien the unit of a dead person, there are good reasons for doing so. Perhaps Mrs. Singh had incurred considerable debt to support herself, all of which secured by way of multiple charges on her unit. Unless the corporation registers a timely lien, which gives the corporation priority over almost all secured creditors, those creditors may eat up what is left of Mrs. Singh’s estate, leaving the corporation unable to collect on arrears.
Final steps
In time, the corporation may be asked to turn over the keys to the unit. Given the finality of this step, the corporation should request a Certificate of Appointment prior to handing over the keys. This will protect the corporation from the possibility of someone later alleging that the corporation turned the keys over to the wrong person who interfered with the proper administration of Mrs. Singh’s estate.
The discovery of a dead body in a condo unit can be shocking at first and then require a lot of work on the corporation’s part. Throughout the process, particular attention should be paid to preserving the unit and its contents as the corporation ensures that the proper steps are being taken toward a Certificate of Appointment of Estate Trustee.
Patrick Greco is a partner in the Condominium Law practice group at Shibley Righton LLP, where he enjoys the full perspective gained from providing both solicitor and litigation services to condominium clients. Patrick sits on the CCI Golden Horseshoe Professional Partners Committee and the CCI Golden Horseshoe Conference Committee. Kind thanks to Francois Bourgault of Shibley Righton LLP for his assistance in preparing this piece.
First Published in CondoNEWS - Fall 2017