I’m often asked to review condominium documents because the language used is not clear. One reason is the legalese used by many lawyers when drafting the documents. (“Now herewithin witnesseth” really?). Do we think it makes us sound smart? Whatever the reason, it needs to stop!
If we want the owners to read the documents (and we should) we need to make them easy to read. The owners shouldn’t need a law degree to understand them! Plain, clear, and unambiguous language needs to become the norm.
Why am I ranting about this today? Because I just read another case where a dispute arose because of unclear language in the declaration.
The case was about the costs of garbage disposal at the condominium. In the past the condominium charged the costs to the owners of the food court units instead of treating them as a common expense to be shared by all owners. The food court owners did not complain about it until 2012 when the board levied a large increase on them. A dispute arose over the interpretation of the declaration.
Section 12(c) of the declaration stated:
…The Owners of Units 23 to 30, inclusive, Level 1, shall be responsible for all costs of cleaning, furnishing, maintaining, policing, and managing the Food Court Area.
The food court was an exclusive use common element.
Clause (m) within Schedule “E”, which set out the common expenses, stated:
All costs of maintaining, repairing, cleaning, policing and managing the Food Court area shall be allocated separately and equally to each of the Owners of Units 23 to 30, inclusive, Level 1.
Clause b(vi) within Schedule “E” provided that waste disposal for the common elements only was a common expense.
Finally, section 15 stated that “all refuse and garbage must be retained by each Owner within such Owner’s Unit and shall be the responsibility and obligation of each Owner to dispose of such refuse and garbage on a timely basis and in accordance with the Rules of the Corporation in this regard.”
The condominium interpreted the above as giving the board the authority to charge the food court unit owners directly for disposal costs for waste from the food court seating area. The owners disagreed.
The application judge found that the costs were common expenses to be paid by all of the unit owners.
Hopefully we can change the way we draft condominium documents and these types of disputes will become less common in the future.