A No-Nuisance CAT – Expanding the Condominium Authority Tribunal’s Jurisdiction to Include Nuisance-Related Disputes

Being a relative newcomer, the Condominium Authority Tribunal (CAT) has had a limited scope of jurisdiction since beginning its operations in November of 2017. As of January 1st, 2022 the CAT will have jurisdiction to hear a wider array of disputes related to nuisance with the new changes to section 117(2) of the Condominium Act.  
 
First, amendments to O. Reg. 48/01 sets out a list of prescribed nuisances, annoyances, or disruptions for the purposes of the new clause 117(2)(b) of the Condominium Act, as discussed below. This list will allow the CAT to hear cases on the following if they are unreasonable: Odour; Smoke; Vapour; Light; and Vibration. 

Second, it will also allow for the CAT’s jurisdiction on provisions in a condo’s governing documents to prohibit, restrict, or otherwise govern, the activities described in subsection 117(2) of the Condo Act or in O. Reg. 48/01, for any other type of nuisance, annoyance, or disruption to individuals in a condo corporation. 

Lastly, it will allow for the CAT to hear matters related to the indemnification of the corporation and owners in these sorts of disputes. 

With this widening of jurisdiction for the CAT comes changes to section 117 which deal with potentially dangerous conditions and activities within the units or the common elements of a condo, as well as trying to tackle these issues of nuisance. The changes to 117 set out the prohibitions against: 

  1. causing, through an act or omission, conditions or activities in the condominium units, common elements or assets that are likely to damage the property or the assets or cause an injury or an illness to an individual; 
  1. carrying on or permitting activities in the units, common elements, or assets if the activity(ies) results in the creation or the continuation of; 
    (a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets or; 
    (b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets. 

Condo Considerations for New Proof of Vaccine Mandates in Ontario

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On September 22, 2021, certain businesses and organizations in Ontario are required to ask patrons for proof of vaccinations and identification before allowing them to enter the premises. There are exemptions, such as those for children and certain medical conditions, but generally speaking all adults are expected to show proof of vaccination to access the listed premises. Some condominiums have the types of premises listed in the regulation, including indoor fitness areas and indoor meeting and event spaces. Does this mean condominiums must ask owners for proof of vaccination and identification?

It is not clear. Most lawyers seem to interpret this regulation as not applying to condominiums because of the use of the word “patron” and there being no clear language indicating an intention for it to apply in condominiums like there is with the regulations about masks and other requirements. Our friends at DHA went one step further and reached out to the Ministry of Health for clarification and were told the regulations requiring proof of vaccinations and identification do not likely apply to condominiums. You can read their full post here: https://dhacondolaw.ca/condo-law-news/ministry-update-what-the-proof-of-vaccination-requirement-means-for-condominiums/

What does this mean for condominiums?

It appears that condominiums are not required to ask their residents and others for proof of vaccination and identification to use indoor gyms, pools, and meeting spaces. (Note: the condominiums still must comply with other requirements about masks, distancing, contact tracing, and limits on the number of people using the area).

Some condominiums may choose to keep these areas closed for a variety of reasons, including concerns about the spread of the virus and associated liabilities and the costs or inconvenience of the additional regulatory requirements to open the facilities. Others may decide to open the facilities to all residents who wish to use them, following all regulatory requirements and sometimes having owners sign a release or waiver of liability.

Other condominiums may choose to pass rules creating vaccination policies for the residents to use certain amenities. Some may require proof of vaccination while others may offer alternatives, such as testing or proof of immunity through prior infection. These rules should be reasonable based upon the risks identified. For example, a vaccination policy for a small, indoor gym is more likely to be reasonable than a policy requiring owners using an outdoor greenspace to show proof of vaccination. The policy should not require owners to show proof of vaccination to access their own homes, so there should be exemptions for ingress and egress on the common elements even if those areas may be shared with others. Furthermore, the policy should consider medical exemptions and other accommodations that may be necessary according to the Human Rights Code to balance the person’s individual rights with those of others in the community. Lastly, the condominium will need to carefully consider privacy issues surrounding the collection and disclosure of any information received about vaccinations, exemptions, or identification.

This is a new and constantly developing area of law. If you have any questions or concerns, reach out to your lawyer for further advice and direction.

Visitor Parking Wars Rage On

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There have been several parking cases at the CAT since its jurisdiction was originally expanded. In many cases the owners denied that they were improperly parking on the property and argued the rule was unenforceable. In some cases the CAT members felt there was insufficient evidence to support the condominium’s allegations against the owners. In other cases the conduct was not contrary to the rules.

In a recent case a condominium argued that three owners were parking in the visitor parking spaces, which was prohibited by the rules. The owners admitted that they were parking in the spots. They argued they had been doing so for many years without incident, so they should be entitled to continue doing so. They argued the rules were inconsistently enforced and no longer served their condominium community.

The CAT member reviewed the governing documents, including Rule 2.18 that stated the parking lots at the front and rear of the building were “reserved for visitors and guests only”. The rule stated that the owners must use the designated spots in the underground parking garage. The owners parked in visitor spaces because their vehicles were too large to fit in the underground parking garage.

The owners argued that they should be able to continue to parking in the spots because they had been doing so for several years. They also argued that they were being targeted for enforcement while others were violating the rules. They also argued the rule was unreasonable as it had not changed in 30 years. In response, the condominium stated it was prompted to enforce the rules after receiving several complaints about misuse of the visitor parking. The condominium admitted that the rules were not enforced in the past, but the current board had given owners ample notice of their intention to enforce the rules. The CAT member was not persuaded that the condominium’s enforcement was unfair.

The CAT member also disagreed with the owners regarding the reasonableness of the rule. While large vehicles may be more popular now than when the rule was created 30 years ago, that did not render the rule unreasonable. The owners ought to have investigated the designated parking space for their unit before purchasing it. “If they owned or chose to purchase a vehicle that did not fit into the spot, this was their choice”.

Lastly, the owners argued that the condominium had acted improperly in not accepting any of their proposed solutions. The CAT member disagreed. “While I commend the parties for their attempts to resolve this matter through discussion and negotiation, the fact that a resolution was not reached is not evidence of wrongdoing by either party.”

The CAT member gave the owners 90 days to remove their vehicles from the visitor parking lots. After the 90 days the condominium could continue its efforts for enforcement.

Condo Lingo – Common Errors and Misconceptions Part 2

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This is the second post in this series. As the name implies, in this series we will discuss some common terms and phrases that are used incorrectly by owners and others in the industry. Today’s post focuses on terms related to meetings and voting by owners.

Quorum

One of the most misunderstood terms is “quorum”. A quorum is the number of units that must be represented at a meeting to transact business at the meeting. According to subsection 50(1) of the Act, a quorum for the transaction of business is 25% of the units in the corporation, except for certain meetings. Quorum for the first meeting held after registration of the condominium (if required to be held before the turn-over meeting) to allow owners to elect two directors to the declarant board is 25% of the units not owned by the declarant.

Quorum may be reduced if two meetings have been held and the condominium failed to achieve 25%. Quorum drops to 15% for third or subsequent attempts to hold certain meetings after the first two attempts fail to achieve 25%. These meetings are the annual general meeting, turn-over meeting, or any other meeting (i.e. requisition) to elect one or more directors or appoint an auditor.

To count toward quorum, an owner must be entitled to vote at the meeting (i.e. not in arrears for 30 days or more at the time of the meeting) and they must be present at the meeting or represented by proxy. Participating in electronic voting will count as being present at the meeting if the condominium passes a by-law indicating such or the temporary amendents made to the Act are made permanent.

Lastly, keep in mind that all units are not created equal when trying to determine quorum for a meeting. Units used for parking, storage or services/facilities/mechanical purposes should not be included unless all of the units in the condominium are those types of units. For example, if there are 100 residential units and 200 parking units, quorum is 25 residential units and not 75 units of any type.

Vote vs. Consent

The Act uses different language to describe the approval of owners or others whose approval may be required, such as the declarant or a mortgagee. For example, owners “vote” for some matters and “vote against” other matters. To add to the confusion, sometimes “consent” is required instead of a vote.

Owners “vote” for procedural matters at meeting, changes to the common elements, assets or services under s.97, the election or removal of directors, to make, amend or repeal by-laws under s.56, and to terminate the condominium under ss.122-125 (note a mortgagee “consents” to termination instead of voting). A new rule will be approved by the owners if the owners at the meeting do not vote against it, which means a tie vote would result in the rule being approved whereas in most cases a tie would be considered a vote against the motion.

On the other hand, owners must provide their “consent” to terminate telecommunications agreements under s.22(9), dispense with the audit under s.60(5), declaration amendments under s.107, and amalgamations under s.120.

There are a number of similaries with votes and consents. For example, owners can lose the right to vote or consent if they are in arrears for 30 days or more but they can become eligible by paying the arrears prior to the meeting for votes or prior to end of the consent period for consents. Similarly, there is only one vote or consent per unit. If there are multiple owners of a unit the majority will cast the vote or consent.

The main difference is that a vote is conducted at the meeting (i.e. ballot, proxy, show of hands, electronic vote) whereas a consent could be collected before or after the meeting depending upon the specific requirements of the Act.

Lastly, as was the case with quorum, it is important to remember that certain units (i.e. those used for parking, storage, service/facilities/mechanical) do not have the right to vote or consent to certain matters unless all units in the condominium are those types of units. Speak with your lawyer for more information about the units to be included in a specific vote or consent process.

Proxy – Is it a Paper or a Person?

The term “proxy” has different meanings in the Act. It is used to describe the prescribed proxy form (in paper or electronic format) that appoints another person to attend a meeting of the owners. It is also used to refer to the person who has been appointed to attend or vote for the owner in the proxy form. To avoid confusion, I tend to use the term “proxy” or “proxy form” to refer to the prescribed form and “proxy holder” as the individual.

The proxy holder takes the place of the owner (or other person entitled to vote at the meeting, such as mortgagee of a unit). A proxy cannot be used for board meetings. The proxy holder does not need to be an owner, but the proxy holder must be in attendance at the meeting. The proxy form may give the proxy holder the right to vote for matters on behalf of the owner as they see fit or include the owner’s vote for some or all of the matters to be voted upon at the meeting.

Thanks to our summer students, Zach Powell and Hannah Johnston, for help with this post. Stay tuned for more in this series!

Condo Lingo – Common Errors and Misconceptions

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This is the first of another series for our blog (are you sick of our series posts yet?). In this series, we will discuss some common terms and phrases that we regularly hear owners and others in the industry use incorrectly, leading to confusion and errors. Today’s post will focus on terms and phrases used to describe the type of condominium and differentiate between common elements and units.

Type of Condominium

The most common type of condominium in Ontario is a “standard condominium”. The other types of condominiums are “vacant land condominiums”, “common elements condominiums”, and “leasehold condominiums”. Standard condominiums may also be “phased condominiums”, which we will discuss in greater detail in a future post.

You cannot tell the type of condominium by looking at the property (i.e. high-rise or townhouse) or based upon the use of the units (i.e. commercial, residential). For condominiums created on or after May 5, 2001, the easiest way to determine the type of condominium is to look at the name of the condominium. For example, Waterloo Common Elements Condominium Corporation No. 1000 would be a common elements condominium that is the 1000th condominium registered in Waterloo Region. Condominiums created before May 5, 2001 are all standard condominiums but their name will not include the type. For example, Halton Condominium Corporation No. 300 would be a standard condominium despite it missing the word “standard”.

Freehold Condominium

This term is often used incorrectly, especially during the marketing phase of a new condominium development. Almost all condominiums in Ontario are freehold condominiums. The other type, leasehold condominiums, are exceptionally rare. A freehold condominium is one where the structure and land are owned by the unit owner whereas with a leasehold the unit owners do not own the land. The land is leased.

The term “freehold condominium” is typically used to refer to a type of unit that includes the structure and sometimes a portion of the yard around it. There are other terms that may be more appropriate to describe these types of condominiums, such as whole lot or modified boundary condominium. These terms are not as catchy, but they are more accurate.

Units vs. POTLs

The term “unit” means the part of the property that is owned by the unit owners, including the land, structures, and any fixtures within the boundaries. Common examples include residential dwelling units, commercial units, parking units, and storage units. Some less common types include sign units, elevator units, and corridor units. For newer condominiums the unit boundaries are described in Schedule “C” of the declaration and in the description. For older condominiums, the boundaries may be in a different schedule or within the body of the declaration. The term “unit” is used for all types of condominiums, except for common elements condominiums.

For common elements condominiums there are no units as the condominium only includes common elements. Instead, the term “POTL” is used to refer to the lands with a common interest in the common elements condominium. “POTL” is an acronym for parcel-of-tied-land.

Common Elements vs. Exclusive Use Common Elements

The term “common elements” is defined in the Condominium Act, 1998, as “all the property except the units”. The easiest way to determine what forms part of the common elements is to review the unit boundaries in the declaration and the description. All unit owners can make reasonable use of the common elements, subject to any conditions or restrictions in the declaration, by-laws and rules.

The term “exclusive use common elements” refers to common elements that are used exclusively by one or more of the owners but not all of the owners. It is common to have one owner have the exclusive use of an area, such as a parking space, balcony, patio, yard, or driveway. Sometimes a group of the owners will share an area, such as a rooftop patio or porch area, based upon the type of unit (i.e. commercial vs. residential) or location (i.e. penthouse or groundfloor units). In newer condominiums the exclusive use common elements are described in Schedule “F” of the declaration.

It is important to understand if an area is part of the common elements or exclusive use common elements as there may be different conditions and restrictions on the use of the area depending upon its classification. It could also be important for maintenance and repair obligations.

Parking Unit vs. Parking Space

Some people use the terms “parking unit” and “parking space” interchangeably, but this should be avoided as there tend to be different rights and obligations for a parking unit compared to a parking space. A “parking unit” is more properly used to refer to units that are capable of being transferred, subject to restrictions in the declaration. A “parking space” should be used to other parking areas outside of the units, located on the common elements orexclusive use common elements.

Thanks to our summer students, Zach Powell and Hannah Johnston, for help with this post. Stay tuned for more in this series!

New to the Condominium Way of Life: Part 4

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Our fourth Q-and-A style blog post has arrived. This time we discuss how you can navigate having a noisy neighbour, a neighbour that has complained about you being too noisy, how you can build a case for a complaint, and what you can do if you disagree with a ruling of a condominium.

Noise is one of the most common types of nuisances in condominiums, especially in residential condominiums constructed with shared walls, like apartments or townhouses. While owners have a right to use and enjoy their units, there is no absolute right to silence. Living in close quarters means that owners must expect some level of noise from their neighbours. The residents are entitled to make ordinary household noises without fear of complaints against them or enforcement steps being taken by their condominiums. The courts have suggested that in most cases ordinarily household noises will include the sound of people walking in the unit above, children playing, doors and cabinets closing, chairs moving away from tables, and vacuuming.   

Q. What can I do if another unit owner is being noisy and disturbing me?

A. Ask yourself the following questions: Is the source considered an ordinary household noise? Is the sound at a reasonable level? Is the noise occuring during the day?

If the answer to these questions is yes, there is likely not much the condominium can do to assist you as the other residents have the right to use their units. You could purchase noise reducing earplugs or a white noise machine to cover the noises. You could also speak with your neighbour to see if you can work out a solution, such as the owner agreeing not to vacuum at a certain time of day when you might be sleeping.

If the noise is unreasonably loud or very frequent, or occurring late at night, and your neighbour is not willing to reduce the noise or work with you to find a solution, you can reach out to the condominium for assistance. The condominium will likely ask for details about the noise, such as the date and time of occurrences and a description of the type of noise (i.e. loud music, banging or hammering). The condominium may also ask you to provide a recording from your phone or other device if the noise is the type that is easily recorded. This information will help the condominium investigate your complaint and address it with the other resident. In some cases, the condominium may have an acoustical engineer or other professional investigate the noise and provide a report of the sources.

You might have success calling by-law officers to report the noise. Keep in mind that the by-law officers will only ticket the other resident if they can hear noise that violates the municipal by-law at the time of their attendance. Often by the time the officers arrive the noise has subsided. Also, in some parts of the province by-law officers will not attend condominiums in response to noise complaints.

Q. What can I do if another unit owner has complained about me?

A. Consider if you are making too much noise in your unit and take steps to reduce the noise. Often installing area rugs or flooring with high quality underpad can work for a variety of noise issues. You can purchase inexpensive felt pads to reduce noise from banging cabinets, furniture moving across the floor, and closing doors. Keep noise from electronics, like televisions and computers, to a reasonable level or use a headset. Ask your kids to stop screaming or not jump off furniture, especially early in the morning when some people might still be sleeping. If you have people over for dinner or a party, remind them of the rules about noise and their obligation to keep the noise down. Whatever you do, do not ignore a letter from the condominium alleging any sort of rule violation, including excessive noise, as it could have significant consequences.

If you believe the owner complaining about you is unreasonable or there are special circumstances causing the noise, such as a renovation project, you can try speaking with them to see if there are certain noises or times of day that they find most irritating and work with them to find a solution. You can keep your own record of times when you are home and your activities to refute the complaints if you feel the other owner is making them up or exaggerating about the noise.  If you feel the noise is caused by another unit or from the common elements, such as the elevator, garbage chute, or HVAC equipment, ask the condominium to investigate to rule out deficiencies with these items.   

Q. What can I do if the condo has ruled against me in a complaint but I think the decision is unreasonable?

A. If you feel the condominium is not addressing noise from another unit that disturbs you, you could gather your own evidence to make a case for the condominium. For example, have witnesses give you statements of what they hear and feel when they visit your unit. You could hire an expert to provide a report of their findings. You could record the noise with your phone or other device. If the condominium still refuses to address the noise, you should speak with a lawyer about your options for requiring the other owners and the condominium to comply with the rules regarding noise.

If the condominium takes steps to enforce against you and you feel you are not causing excessive noise, you should speak with a lawyer about your options for defending yourself. For example, you might want to request mediation to try to resolve the matter without court as mediation tends to be much quicker and less costly than court.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

New to the Condominium Way of Life: Part 3

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Here is our third Q-and-A style blog post! In this post we discuss the different documents that condominiums have to describe the rights and obligations of unit owners and occupiers, as well as the condominium board of directors – the declaration, by-laws, and rules.

Q. Can you explain the difference between a declaration, by-law, and rules?

A. The condominium’s declaration is often called its “constitution” because it (along with the description) creates the condominium. It is like a condominium’s articles of incorporation. It sets out basic information about the condominium, like the number and type of units, the type of condominium, conditions and restrictions on use of the units, the proportions of ownership and contributions toward common expenses, the unit boundaries, and maintenance and repair obligations. The description is often called the “survey” or “map”. It shows the boundaries of the units, common elements, and exclusive use common elements.  Condominiums must have a declaration and description and both can be amended.

The condominium’s by-laws typically address board governance and other matters related to how the condominium operates. For example, the by-laws will describe the qualifications for directors, how meetings of the owners are to be conducted, and procedures for conducting mediations. One of the most important by-laws is the standard unit by-law. The standard unit by-law describes the condominium’s obligations for insurance on the units. Any item that is not part of the standard unit as defined in the by-law will be considered an improvement that the owner must insure. Every owner should review their standard unit by-law and provide a copy to their own insurer to make sure they have adequate coverage in place. Other by-laws address special situations, like granting easements or rights-of-way to a neighbour, borrowing funds for a repair project, or paying remuneration to the directors. Most condominiums have at least one by-law and many have several, but there is no requirement to have one at all. By-laws can also be amended or repealed (deleted).

The condominium’s rules tend to cover more mundane issues, like the requirements for garbage disposal (i.e. type of bags or containers, garbage days, permitted times for using garbage chutes). The rules are much easier to change than the declaration or by-laws, so they tend to contain subject matter that changes regularly, like the process to obtain a parking permit from the manager or parking control company. There is no requirement to have rules, but most condominiums have them.   

It is important to note that there is a hierarchy among the documents. The declaration is at the top. The by-laws and rules must be consistent with the declaration to be enforceable. For example, a condominium could not pass a rule that permits short-term rentals if the declaration prohibits them. Next in the hierarchy is the by-law, or by-laws. Finally, the rules are at the bottom of the hierarchy. The rules must be consistent with the declaration and by-laws to be enforceable.  

Q. How strict can each of the documents be?

A. The Condominium Act, 1998, describes the permitted and mandatory subjects for each type of document. There are several different parts of the Act and its regulations that describe the subject matters, but the most commonly used sections are:

  1. Section 7 for declarations;
  2. Sections 56 & 57 for by-laws; and
  3. Section 58 for rules.  

It is important for the condominium to use the proper document for the new condition or restriction or it could be unenforceable. For example, a by-law that attempts to describe the unit boundaries will be unenforceable as the Act requires the unit boundaries to be described in the declaration and description.

The Act also requires by-laws and rules to be reasonable. The declaration has no such requirement. What is reasonable? The Act does not say. Fortunately, there are several reported cases that provide some guidance in determining if a proposed new by-law or rule would be reasonable.

Q. What can I do if I, as a unit owner, think that a rule, by-law, or provision in a declaration is too strict/unreasonable?

A. All amendments to the declaration and by-laws must start with the board of directors. As such, if an owner has concerns about a provision being unsuitable for the community the owner should reach out to the board to discuss possible amendments. If the board refuses to take steps to change the document, an owner may want to apply to challenge the validity of the document. There are a few different ways this can be done, including the Superior Court of Justice, mediation/arbitration, or the Condominium Authority Tribunal.

For rules, owners may requisition a meeting to amend or repeal rules according to subsection 58(5) of the Act, which states:

Amendment by Owners

(5) The Owners may amend or repeal a rule at a meeting of owners duly called for that purpose.

Note subsection 58(5) of the Act does not permit owners to create new rules.

Q. How do I, as a unit owner, go about reviewing a condo’s declaration, by-laws, and rules?

A. You should have obtained copies of the declaration, by-laws, and rules when you purchased your unit. If not, you can obtain copies from the condominium. We normally suggest owners review their documents in the following order:

  1. Rules;
  2. Declaration; and
  3. By-laws.

The reason for this recommendation is that the rules tend to be the easiest to read and will often highlight the key restrictions or conditions for using the property. Reading the rules first gives owners an idea of what to look for when reviewing the declaration. Also, the declaration tends to be more complex and lengthier, which can frustrate owners and make them less likely to continue reading the other documents. The by-laws are important for directors, or candidates for the board, to review as they describe how the board conducts business. For owners, most of the by-laws will be irrelevant to their daily living.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

New to the Condominium Way of Life: Part 2

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This is our second Q-and-A-style blog post for those who may be new to the condominium way of life or are contemplating moving into one.

In this post we focus on how and where issues that arise within condominiums get resolved with a focus on the Condominium Authority Tribunal and the mediation and arbitration processes required by the Condominium Act, 1998.

Q. What is the CAT?

A. The CAT is the Condominium Authority Tribunal. The CAT is a tribunal that has been created to hear certain types of condominium disputes involving owners and condominiums. A purchaser of a unit or a condominium manager may also apply to the CAT with respect to certain disputes in rare situations.  

Q. When does the CAT get involved?

A. The CAT can only become involved in disputes if it has jurisdiction in the area. The CAT’s jurisdiction is described in a regulation made under the Act and currently includes:

  1. Record disputes related to a request made by an owner or purchaser of a unit to examine records or obtain copies of them, including disputes over the applicable fees for examining the record or obtaining copies of them, the condominium’s reasons for refusing the record, and the penalty for the condominium’s improper refusal.
  1. Compliance disputes about the declaration, by-laws or rules related to any of the following:
    1. Pets or animals
    2. Vehicles
    3. Parking and storage
    4. Indemnification claims for costs related to (a) to (c).

The CAT does not have jurisdiction over a dispute, even if it fits within the list above, if it also relates to section 117 of the Act (an activity or condition that is likely to cause damage to the property or injury to persons), a section 98 agreement (where an owner makes changes to the common elements), or an agreement under s.24.6(3) of O.Reg. 48/01 (where an owner installs an electric vehicle charging station on the common elements).

Q. What are the other types of available dispute resolution processes for condo disputes?

A. If the CAT does not have jurisdiction over a dispute, it does not mean the parties should run off to court. The Condominium Act, 1998, requires mediation and arbitration of certain types of condominium disputes about agreements between:

  1. A declarant and a condominium, including a dispute about a first-year budget deficit under section 75 or a budget statement under subsect 72(6),
  2. Two or more condominiums, such as disputes about the use of shared facilities or the cost sharing obligations for the shared facilities,
  3. A condominium and a unit owner about a section 98 agreement (changes to common elements made by owners), and
  4. A condominium and its condominium manager.

In addition, every declaration is deemed to contain a provision that requires condominiums and owners to submit disagreements about the declaration, by-laws or rules to mediation and arbitration as well. This has been broadly interpreted to cover disagreements about the validity, interpretation, application, or non-application of the declaration, by-laws and rules, as well as damages claimed by an owner or the condominium related to the disagreement.

The mediation and arbitration provision does not apply to disputes involving tenants but a condominium and owner could agree to attempt to resolve the dispute without court by voluntarily using mediation and arbitration.

Some “pure” enforcement issues may proceed to court without mediation or arbitration as there is no disagreement in these cases. The owner simply refuses to comply with their obligations or ignores requests to comply.

There are many situations where court is the most appropriate option, such as a power of sale process to enforce a lien to collect arrears owed by a unit owner. It is important for condominiums and owners to seek legal advice before choosing the forum for their dispute as the improper forum could cause delays and additional costs, and in some cases, act as a bar against proceedings in the proper forum.

Have a question you think new owners need to know? Send it to us and you may see it in a future post.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

Condominium Boards: Reviewing Your By-Laws is Vital to Running Your Condominium Effectively

Condominiums have registered by-law(s) setting out important corporate governance matters, including:

  1. Directors and officers: elections and appointment, qualifications, length of terms of office, the number of directors and officers, etc.
  2. Board meetings: quorum, voting, etc.
  3. Borrowing money for the corporation
  4. Assessing and collecting common expenses
  5. Standard unit definitions and insurance deductible responsibilities
  6. Maintenance and management of the property and corporation’s assets

and the list goes on.

But does the Board of Directors truly need to read these by-laws? YES!

By-laws are not documents of legal jargon that can be filed away – by-laws contain important information with an ongoing impact on the condominium. The by-laws must be followed in order to run the condominium effectively.

For example, how many directors are you required to have on your Board at any given time? If your by-law requires at least 5 directors, but you only have2, then your Board has not met its quorum requirements and cannot properly carry out Board business.

Understanding your by-laws is also important when sending information to owners, such as a Notice of Meeting. If you are electing directors at your next Annual General Meeting, you should always review your by-laws before stating in the Notice of Meeting the number of director positions up for election and the length of the terms of each director position. The by-laws may also prohibit nominations from the floor, which the owners should be told of in advance of the meeting.

During the COVID-19 pandemic, many condominiums have started holding electronic meetings, which may include electronic voting. As condominiums have been forced to adopt electronic methods, they are realizing these new methods can be highly effective and would like to continue in this manner after the pandemic ends.

Before passing a new by-law to permit electronic meetings and voting, we recommend reviewing your current by-law(s) to see if electronic meetings and voting are already permitted, and to ensure compliance with the by-law’s terms. If your current by-law(s) do not meet your condominium’s needs, they can be amended.

If reviewing your by-laws seems like a daunting task, we would be happy to assist you to ensure your condominium is operating as effectively, efficiently, and happily as possible.

New to the Condominium Way of Life?

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A Post for those New to the Condominium Way of Life

If you have never lived in a condominium (“condo”) before or have recently moved into one, you may find that you have some questions about matters such as your condo fees and the authorities that the condo’s board of director has. This is the first in a series of interview-style posts that seek to answer some of those questions so that you can navigate through the condo world (hopefully) without any issues. 

We hope that you find these Q and A style posts helpful!

Q: Where do my condo fees go? To whom do I pay them?

A: All payments for condo fees, including monthly fees, special assessments, or other charges, should be payable to the condo. Payments should not be payable to the superintendent, a director, officer, manager or the management company for the condo. The condo’s by-laws may describe the permitted payment options, such as post-dated cheques or electronic funds transfer (EFT) (which is sometimes called pre-authorized payments (PAP)). Most condos do not accept cash payments. The payments are usually delivered to the manager to deposit to the condo’s bank accounts.

Q: What are the condo fees used for?

A: The fees collected from owners are used to pay for the common expenses of the condo, such as maintenance and repairs, utilities (if individual meters are not installed for the units), and professional fees (i.e. for the condo manager, lawyer, engineer, and auditor). The condo’s declaration and by-laws should describe the common expenses in detail.

Q: What happens if I do not pay my condo fees?

A: A condo’s primary source of revenue is from monthly fee payments from its owners. If owners do not pay their share of the costs the condo may not have sufficient funds to pay its bills as they become due.

Q: What are the repercussions of not paying my condo fees?

A: If an owner does not pay their share of the common expense the condo may register a lien against their unit under section 85 of the Condominium Act, 1998. A lien is similar to a mortgage as it permits the condo, like a mortgage lender, to sell the unit if the owner defaults in their obligations. The condo is also entitled to collect interest on the arrears, collection costs (i.e. manager’s fees to send notices of arrears), and legal costs. The lien is not discharged until the condo receives payment in full.

Q: What if I can’t pay right now simply because of COVID?

A: While it is unfortunate that some owners may struggle to pay their condo fees because of the pandemic, it does not change the fact that they are legally required to pay according to the Condominium Act, 1998 and the Declaration. The courts have confirmed that an inability to pay condo fees is not a defence to an action by a condo trying to sell an owner’s unit. A condo may agree to a payment plan with an owner to give them more time to pay their condo fees, but this should not be expected by an owner as it is rarely an option. In short, the owner must find sufficient funds to pay the condo on time or the condo could sell their home.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post.

Have a question you think new owners need to know? Send it to us and you may see it in a future post.