Municipal By-Laws and Condominiums – What a Condominium Board Needs to Know

Posted on December 30, 2011 at 10:09 AM Benjamin Rutherford No comments

Municipal by-laws set out rules to help form the basis for orderly living in a community. Municipal by-laws address a number of things including: what use can be made of a property (for example, whether you can run a business there or whether it can be used only for residential purposes); the number and kinds of pets a person can have, and; property standards (for example, maintenance and repair issues, storage of things on the property, and guarding against unsafe conditions).

The Condominium Act, 1998, and a condominium corporation’s declaration, by-laws and rules, also set out things that help form the basis for orderly living in a community. Like municipal by-laws they also address, among other things, what use can be made of the property, the number and kinds of pets a person can have, and property standards. In addition, however, a condominium corporation’s declaration, by-laws and rules act as an individual code which governs, regulates, and helps create and define the character of individual condominium communities.

Even though something might be permitted under a municipal by-law, a condominium declaration, by-law or rule can still prohibit the same thing. For example, City of Toronto By-Law 349 (which is the City of Toronto by-law that deals with animals) permits people to keep up to a maximum of three dogs, however, if a condominium declaration in Toronto states that no pets are permitted, then a person living in the condominium is not allowed to keep any dogs on the property. Another example is that a municipal by-law might permit signs or advertisements, but if the condominium declaration or rule prohibits signs and advertisements, then a person in the condominium is not allowed to display any.

Municipal by-laws and condominium documents may address the same problem and provide alternate means of enforcement. For example, municipal by-laws may address what noise a person can make and when. Depending on the type of noise or disturbance it could be the police or someone else who can be called to enforce the by-law. Similarly, condominium declarations and rules almost always stipulate that a person cannot make noise that disturbs the enjoyment by other people of the units and common elements. In such a case the Condominium Act, 1998, provides that mediation/arbitration or court proceedings can be commenced to address a contravention. 

Condominium declarations, by-laws and rules almost always stipulate that a person cannot do something on the condominium property that contravenes a municipal by-law. If there is a contravention of a municipal by-law on condominium property, the issue can be dealt with as a breach of the Condominium Act, 1998, declaration, by-law or rule.

Condominium disputes are rarely confined to a single contravention of a municipal by-law, and are rarely settled simply by enforcing the municipal by-law. Condominium disputes most often need to be addressed under the enforcement procedures in the Condominium Act, 1998. These procedures are specifically designed to deal with condominium disputes, and take into account the myriad of interests in a condominium corporation such as costs, personal relations, and consistency of enforcement. It is important to remember in this context that the party who commences enforcement proceedings under the Condominium Act, 1998 is able to help craft a solution to the problem that is appropriate to the condominium. When in doubt consult your condominium lawyer!

How can a Board of Directors amend a declaration?

Posted on November 04, 2011 at 04:26 PM Mario Deo No comments

A condominium declaration is created exclusively to each condo at the time of registration. Declarations can become outdated and not fit the present modern condo trends. In most cases the only option available to the board of directors is to amend the declaration. When amending a declaration, the board may decide to include aspects of condo culture that were not the norm during the time of the declarations execution or some amendments will concern excluding things that no longer fit the present condo standards. Whatever the goal may be, amending a condominium declaration is governed by section 107 of the Condominium Act (the “Act”). Below is a list of steps simplifying the procedure:

• Details of the meeting (meeting agenda)
• A copy of the proposed amendment
• Consent forms (for owners to approve the amendments in writing)
• Clear instructions to the owners to bring the executed form during the meeting if they approve the proposed amendments must be detailed in this package.
  

Step 4: The proposed amendments must be approved in writing by the owners of at least 80% or 90% (depending on the changes made) of all units including residential, parking, locker, communication, recreational, superintendent and guest suites in the corporation. Owners are those who are registered owners of the unit on record with the Land Registry Office at the time the board approves the proposed amendments.

Step 7: A “Confirmation Form” must be executed prior to registration to verify that the steps noted above have been complied with. Upon registration, a prescribed certificate (Form 1, 0. Reg. 49) is to be signed by the appropriate members of the board and must accompany the proposed amendments. 

Can a condominium restrict rentals in Ontario?

Posted on September 29, 2011 at 04:04 PM Mario Deo No comments

Restricting rentals of condo units in a building can affect individuals purchasing units in the condominium market and more specifically, the investor-owned units. However, those who plan on owning and residing in the unit may invite such restrictions because of the fear that rented units would generally have a negative effect on the community. Our firm received an inquiry regarding whether Ontario Condominiums are able to impose such restrictions on condo rentals. 

Q: I have been told by a couple of owners of rules in their Florida condos that require an owner to occupy a purchased unit for a period of 3 years before being eligible to put the unit into rental.  Is such a rule allowable in Ontario?  I further understand from these owners that there is a stated percentage of units allowed to be rental properties and no more.  Is such a rule allowable in Ontario?

A: Unfortunately the answer is no to both questions for Ontario. Our law firm has argued the leading case in the restriction of rentals in Ontario which allows for the passage of a rule by the board, which requires all leases to be a minimum of 12 months. Beyond that, the rental of units cannot be restricted except, of course, that tenant residents must comply with the same provisions as owner residents, that the landlord is responsible for any tenant transgressions, and that a copy of the lease must be provided to the corporation (see section 83 of the Condominium Act). It is the same legal philosophy that has not allowed adult only buildings in Toronto and the rest of the Ontario for that matter. I do not agree with these restrictions on condominium communities, however there is a provincial election coming up! A condominium should certainly be allowed to forbid rentals. Why not? It is their property to govern and the restriction does not hurt anyone if there is ample notice of it (which is simple to do).

Human Rights Tribunal and Pool Restrictions

Posted on May 27, 2011 at 07:32 AM Kristen Bailey No comments

Condos in the News

Posted on April 07, 2011 at 11:39 AM Bradley Chaplick No comments

Early this morning, a hot water supply pipe burst in a 30-storey Mississauga-area condominium tower. The building was evacuated, and at least one resident suffered burns from the scalding hot water. Our thoughts go out to the residents, and we wish them a speedy recovery and return to their homes.

Click here to read the related Toronto Star article.

Requests for Records under the Condominium Act: A Clear Warning to Unit Owners

Posted on April 01, 2011 at 01:40 PM Bradley Chaplick No comments

A common challenge facing condominium corporations is the presence of "condo commandos", unit owners who engage in a course of conduct that interferes with the management of the condominium corporation.

A recent court case dealt with a unit owner who had performed some repairs to a water supply pipe, and was seeking reimbursement from the condominium corporation. When his request for reimbursement was denied, the unit owner bombarded the management office with countless requests for records and other related information. While the vast majority of his requests for records were satisfied, the unit owner refused to accept that he was not entitled to some of the records, or that others simply did not exist.

The unit owner then commenced two Small Claims Court actions, seeking reimbursement for his cost of repairing the pipe, and production of various records, such as detailed plumbing plans, and legal invoices. The Court dismissed both actions, and also ordered that the unit owner pay the condominium corporation’s legal costs on a punitive scale. In so doing, the Court stated that the Condominium Act did not "condone acts which amount to interference with the board's legal duty to [its] owners", as the innocent unit owners would ultimately be responsible for the cost of defending nuisance lawsuits.

Click here for a copy of the complete decision, Mishukov v. York Condominium Corporation No. 201, Endorsement of Feldman, J. (March 17, 2011) (Ontario Small Claims Court).

Swimming Pool Safety

Posted on March 15, 2011 at 11:38 AM Kristen Bailey No comments

It's almost the time of year when our condominium clients are preparing to get their outdoor swimming pools ready for the start of summer.  Click here to read our CondoByte - "Swimming Pool Safety".

Springtime in Toronto, Pets and Enforcing Rules

Posted on February 25, 2011 at 11:51 AM Bradley Chaplick No comments

As I walk my dog around the grounds of my condominium building, the melting snow reveals a springtime tradition; mounds of dog waste, thawing on sidewalks and lawns. As I carefully guide my dog around these seasonal hazards, I am reminded of the minefield of pet rules that are part of so many condominium communities.

The most common version of a condominium corporation’s pet rule grants the board of directors the discretion, or perhaps the “absolute discretion”, to deem a pet to be a nuisance. Nuisance rules are meant to address the behavioural problems of both pets and pet owners alike. Incessant barking, aggression, and fouling the common elements are all examples of potential nuisance.

Once a pet has been deemed to be a nuisance, the board may require that the pet be permanently removed from the owner's unit. Does this mean that the board can demand the removal any pet whenever it wants? No, it doesn’t, because the discretion that is afforded to the board is not a license to act capriciously. How can a board ensure that the exercise of its discretion is within these limits?

In a previous blog, I discussed how a board of directors could protect its decisions from interference from the courts, and in particular, how a good decision is:

1. investigated, researched, or otherwise informed;

 

2. selected from a range of reasonable alternatives;

 

3. formalized by a vote of the board;

 

4. achieving a valid purpose or objective; and,

 

5. made in the best interest of the condominium corporation.

Applying these characteristics to a pet rule, a board would be wise to:

1. develop and apply a consistent policy that sets out the criteria for when a pet will be deemed to be a nuisance;

 

2. wherever possible, have an independent third party verify complaints; and,

 

3. open a dialogue with the pet’s owner, informing the owner of the nature of the complaints (but not the identity of complainants), and warn the owner that the status quo is not acceptable.

 

When the matter comes down to a vote of the board, the preamble to the proposed resolution should describe the precise nature of the problem, and the previous unsuccessful attempts to try and solve the problem.

Please share your thoughts on enforcing pet rules in the comments section below.

Is your condominium's address for service up to date?

Posted on February 03, 2011 at 12:06 PM Kristen Bailey No comments

Your condominium corporation has an address for service, usually specified in the declaration, which is registered on title to the units.

It is important for that address to be up to date, however often is is not, and it is either the declarant's address or the condominium corporation's first property manager's address. Some condominiums in Toronto,York and Peel have not even updated their original address for service from the 1970s or 1980s.

The address for service can and should be updated by a board of director's resolution. The applicable form must then be registered on title to all units in the condominium. This is not an expensive procedure.

When will a condominum board's decisions be reviewed by the courts?

Posted on December 21, 2010 at 01:31 PM Bradley Chaplick No comments

Discretionary Tools: How your Condominium Can Make Expert Decisions

A board of directors in a condominium corporation is routinely required to make difficult decisions.  While it is generally accepted that boards have discretion when making decisions, those who disagree with those decisions have increasingly turned to the courts in an attempt to fetter a board’s discretion.

While the threshold for usurping a board's discretion is a high one, there are steps that boards can take to ensure that their decisions will be upheld, if challenged. In the BCE decision in 2008, the Supreme Court of Canada unanimously re-affirmed a principle of corporate law called the "business judgment rule"

The "business judgment rule" means that a court should not interfere with a decision of a board of directors merely because the court itself would not have made the same business choice in the circumstances, so long as the board acts in good faith in performing the function which they were elected to perform. Thus, rather than making the best possible decision, a board of directors will be protected so long as they make a decision which falls within a reasonable range of alternatives.

While a board may have considerable discretion as to the content of a decision, the best way for a board to protect itself is to employ a strong decision-making process. In this regard, decisions should have the following qualities, which will allow them to benefit from the protections of the business judgment rule:

1) An Informed Decision - where appropriate, a board should obtain professional or expert advice in the form or a written report or opinion. In other cases, a board may make an informed decision by considering the input of a committee that is created to study and make recommendations regarding a particular decision.

2) A Range of Reasonable Alternatives - the board should consider and discuss a variety of options and the relative costs and benefits associated with each option, before making a decision. The board may want to record the fact that such a discussion was held in the minutes of the meeting.

3) A Formal Vote - all decisions must be made by a vote of the board during a duly called meeting of directors where a quorum is present.  If the board meets informally and decides on a course of action, that decision must be regularized at the next board meeting.

4) A Valid Purpose - a vote of the board should be recorded in a written resolution, which should include a preamble that sets out a valid purpose.  The goal that is to be achieved, or problem that is to be rectified, should be evident from a plain reading of the resolution.

5) The Best Interests of the Condominium Corporation - the preamble to the resolution should explicitly state that the p> A decision which is (1) informed, (2) considers a range of reasonable alternatives, (3) is formally recorded, (4) serves a valid purpose, and (5) is, in opinion of the board, in the best interests of the condominium corporation, will protect your board from problems before they happen.

Hoarding in a Condominium

Posted on November 23, 2010 at 02:33 PM Mario Deo No comments

A man’s home is his castle, except when he hoards in a condo.

Hoarding can be defined as the acquisition of and the failure to discard a large number of possessions that appear to be useless or of limited value.  These items can include such things as flyers, newspapers, books and empty plastic containers.  Compulsive hoarding can quickly become a dangerous situation in a condominium.  Excessive amounts of paper, plastic, and liquids often become a fire hazard.  Hoarder’s units also have a much higher risk of rodent and insect infestations.

In the City of Toronto, the property standards by-law currently in place requires that all residents keep their property clean and clear of debris both inside and out. This by-law also requires that properties be kept free of conditions which may encourage infestation of pests.  Further, Section 117 of the Condominium Act, 1998 (the “Act”) provides that no person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.  It is quite apparent that compulsive hoarding is a contravention of the property standards by-law and of Section 117 of the Act.

Corporations must act as expeditiously as possible when compulsive hoarding is discovered.  The first step that the corporation should take is to issue a letter to the unit owner requiring that the unit be cleaned immediately.  The letter to the owner should also provide a date and time that the unit will be inspected by the corporation to ensure that the unit owner has complied.  On that date, two representatives of the condominium corporation should inspect the unit to determine if the unit owner has complied with the corporation’s request.  If the unit is not cleaned to the corporation’s satisfaction, or if the corporation is denied access to the unit, the Fire Department should be contacted and advised of the potential fire hazard in the unit.  Often the matter will then be dealt with by the Fire Department, and the Police Department if deemed necessary. 

If the compulsive hoarding continues in the unit after the Fire Department is contacted, the next step is for the condominium corporation to contact its solicitors to begin legal proceedings.  Depending on the urgency of the situation, the first step taken by the lawyer may be to issue a demand letter to the unit owner requiring that they immediately take measures to permanently remove any fire hazards from their unit.  If the unit owner fails to rectify the matter after this demand letter, or if there is a significant and imminent risk of damage to persons or property,  the corporation may seek an order for compliance under Section 134 of the Act. 

Toronto condominium corporation was vicariously liable for superintendent's actions

Posted on November 12, 2010 at 01:28 PM Kristen Bailey No comments

Toronto condominium lawyers are taking note! A recent Toronto condominium case drives home the principle of vicarious liability of an employer for its employee's actions in the condominium context.

http://www.canlii.org/en/on/onsc/doc/2010/2010onsc3433/2010onsc3433.html

In this case, a superintendent forcibly removed a real estate agent from the lobby of a Toronto condominium, including dragging her over the threshold of the entrance, pinning her down and putting his hands around her neck.  The real estate agent sued the condominium corporation, the superintendent and the property management company for damages for physical injuries, pecuniary losses, and aggravated and punitive damages. In finding that the superintendent did not have the grounds on which to physically evict her from the lobby, the judge determined that the condominium corporation and the superintendent were jointly and severally liable and awarded general damages of $30,000, aggravated damages in the amount of $8,500, pecuniary damages in the amount of $10,000 in favour of the plaintiff.

Rear Deck Case Affirms Condominium Corporations’ Rights

Posted on October 29, 2010 at 09:04 AM Bradley Chaplick No comments

In the recent case of Durham C.C. No. 90 v. Wallace, the unit owners in question had sought and obtained approval from the condominium corporation's board of directors to build a deck at the rear of their townhouse condominium unit.

The problem was that the deck, as built, exceeded the dimensions that had been previously approved. The condominium corporation insisted on compliance with the approved dimensions, and, with the assistance of Toronto condominium lawyers, brought a court application to require the unit owners to alter the deck.

The unit owners responded with a counter-application, claiming that they were being treated unfairly, as other owners had been permitted to keep decks which were even larger than theirs. Those larger decks had been grandfathered by the board, as they were constructed prior to the condominium corporation adopting a strict policy regarding the permitted size and dimension of decks.

The court held in favour of the condominium corporation, and ordered the unit owners to bring their deck in to conformity with the approved dimensions.  The court also ordered that if the unit owners failed to conform, that the condominium corporation could, on 24-hours written notice, undertake the work and add the cost to the common expenses for the unit.

The court rejected the unit owners'argument that they had been treated unfairly, and upheld the principle that the court should allow the elected board of directors to determine what is best for the condominium corporation as a whole.

If your condominium corporation has a dispute regarding a unit owner's changes to the common elements that cannot be resolved to the satisfaction of the corporation, the condominium corporation’s solicitor should be contacted without delay to discuss the available options.

Board Meeting Good Practices - Reviewing Bank Statements

Posted on October 08, 2010 at 10:02 AM Kristen Bailey No comments

Boards of directors should be reviewing monthly bank statements issued by the condominium corporation's bank or trust company, for both the operating and reserve fund accounts of the condominium corporation.

This step should be part of the routine of the montly board meetings, to ensure that your board is being prudent in accordance with its obligations under the Condominium Act, 1998, to manage the affairs of the corporation, and to perform the corporation's duty to control, manage and administer the assets of the corporation.

Dangerous Neighbours

Posted on September 17, 2010 at 02:24 PM Bradley Chaplick No comments

What can a condominium corporation do when a resident is creating a dangerous situation?

As shown in the recent decision of MTCC 747 v. Korolekh, a condominium corporation can apply to the court for relief, and under extreme circumstances, the court will grant extreme relief.

Ms. Korolekh, who terrorized her neighbours in a variety of ways, including violence and intimidation by her lunging Rottweiler, was ordered to remove the dog, sell her unit, and move out.  After Ms. Korolekh failed to abide by the court’s order, the condominium corporation returned to court this morning, September 17, 2010, resulting in an agreement between the parties that Ms. Korolekh would in fact comply.

The case, which is available online, and which was the subject of the front-page headlining article in the Saturday Toronto Star for September 11, 2010, is an important reminder of the unique relationship that exists between condominium residents, and the far-reaching powers of the courts to protect innocent unit owners from those who run afoul of the law.

For those condominium boards that hope to rely on this case, remember that the remedy will always depend on the facts.  Ms. Korolekh was ordered to move out and sell her unit because the court determined that she was completely unmanageable – but in other less extreme cases, a court might not be inclined to grant such a remedy.  In this regard, our firm has been successful in obtaining a variety of beneficial results in dealing with unmanageable unit owners and tenants alike.

Bill 79 proposes significant changes to the Condominium Act, 1998

Posted on September 13, 2010 at 09:02 AM Kristen Bailey No comments

Important Information Website for Ontario Condominium Residents

Posted on September 03, 2010 at 03:34 PM Bradley Chaplick No comments

If you have questions about buying, selling, or living in a condominium, click here to go to an information website created by the Ontario Government.

Condo Board's Decision Making Process - A Recent Case

Posted on August 20, 2010 at 01:40 PM Kristen Bailey No comments

A recent British Columbia Strata case reinforces and articulates the court's deference to a board of directors' decision making process: a chosen course of action may be a "good" solution rather than the "best" solution. However, it does not necessarily render that decision unreasonable, if the board acts in the best interests of all the owners and endeavours to achieve the greatest good for the greatest number.  For our case summary, click here.

Occupiers Liability - A Recent Case

Posted on August 13, 2010 at 10:24 AM Kristen Bailey No comments

Condominium corporations should apply common sense and preventative measures to avoid slip and falls occurring on the common elements.  A recent case is a worthwhile reminder to condominium boards, to consider taking steps to minimize the risk of danger and injury.  For our overview of the case, click here. 

Government gives more time to "top up" reserve funds

Posted on February 23, 2010 at 02:14 PM John Moher No comments

We have learned that CCI and ACMO successfully negotiated an extension to the requirement found in section 33(2) of O.Reg. 48/01 made under the Condominium Act, 1998 (the “Act”) which provides that condominium corporations registered before May 5, 2001 “top up” reserve funds within 10 years of the date on which an initial reserve fund study is conducted. 

The change gives condominium corporations registered before May 5, 2001, 15 years from the date on which an initial reserve fund study is conducted to adequately fund reserve funds in accordance with section 94(8) of the Act, up 5 years from the current 10-year requirement. 

According to a CCI/ACMO joint announcement, the government believes this change will give condominium boards more flexibility with their budgets and assist in taking some pressure off the need to increase common expenses, or to specially assess unit owners.

The change should also assist in reducing the impact of HST on pre-new Act condominium corporations, as boards of these condominium corporations will have an additional 5 years to collect any shortfall in revenue required to adequately fund reserve funds in light of the significant impact HST will have on reserve funds in Ontario.

This important change is scheduled to come into force on July 1, 2010. Congratulations to CCI and ACMO on this important legislative achievement!

New Mortgage Rules for Homebuyers

Posted on February 16, 2010 at 12:00 PM John Moher No comments

Federal finance minister Jim Flaherty announced three important changes to mortgage rules this morning that will affect borrowers in Canada’s real estate market. The purpose of the new rules is to discourage Canadians from taking on unaffordable debt and to put a check on real estate speculators.

The first major change involves insured mortgages. Under the new rules, in order to qualify for an insured mortgage, borrowers must now meet the standards for a new, five year fixed-rate mortgage, even if borrowers choose a mortgage with a lower interest rate and shorter term. Under the current rules, borrowers only have to meet the standards for a new, three year fixed-rate mortgage. The aim of this measure is to help borrowers prepare for future increases in interest rates.

The second major change will affect investors, who will now have to put down 20% of the purchase price in order to qualify for a mortgage. 

The third major change will affect those borrowing against the equity they have built up in their homes. Under the new rules, the maximum amount that can be borrowed against one’s home will decrease from 95% to 90%.

The new rules are expected to come into force on April 19, 2010.  For further information:

"Government of Canada Takes Action to Strengthen Housing Financing”  Ministry of Finance, Feb 16/10.

"Rules Tightened for Home Buyers” The Toronto Star, Feb 16/10. Source: Yourhome.ca

Are you thinking about purchasing or selling your house or condominium unit?

Posted on February 11, 2010 at 02:18 PM John Moher No comments

If you answered yes, or even maybe, you need to know how much it will cost to close the transaction.  Fine & Deo is pleased to announce the launch of its residential closing costs calculator.  This helpful resource allows you to enter certain features about your transaction (purchase price, geographic location, etc...) and provides an estimate of the closing costs applicable to your particular transaction.  Avoid pre-closing headaches and use our calculator to determine a better sense of how much it will cost to close well in advance of the closing date.

In addition to the closing costs calculator, we offer a courtesy half hour consultation to discuss the specifics of your particular transaction. Please contact John Moher by telephone at 905-760-1800, ext. 231 to arrange a consult.

Posted on February 04, 2010 at 11:47 AM Kristen Bailey No comments

The City of Toronto has a comprehensive website for developing and improving recycling programs in condominiums. Publications such as signage and handbooks with useful tips are available on the City of Toronto's website along with information for property managers about the city's recycling volunteer ambassador program for residents.  If your condominium does not have rules that address owners' recycling obligations, consider implementing some.

Mediation/Arbitration Procedures By-Law

Posted on January 29, 2010 at 12:07 PM Marco Graziani 5 comments

Section 132 of the Condominium Act, 1998 mandates that, among other things, any dispute that arises between a condominium corporation and a unit owner with respect to the condominium corporation’s declaration, by-laws and/or rules, may be subject to mediation and/or arbitration. Unfortunately, the legislation does not provide condominium corporations with a set procedure to follow for both the mediation and arbitration process. The establishment of a procedure process has been left up to each condominium corporation to develop and pass by a by-law. If a dispute arises prior to the enactment of a Mediation/Arbitration Procedures By-law, the respective parties will be without a set procedure to follow, and they will be forced to come to some sort of agreement as to the process at that time. It is therefore highly advisable to have this procedure process in place before a dispute develops. 

Small Claims Court

Posted on January 22, 2010 at 11:00 AM Kristen Bailey No comments

On January 1, 2010, the maximum value of a claim in Small Claims Court increased from $10,000.00 to $25,000.00.

Revising a Condo Corporation's Organizational By-law

Posted on January 20, 2010 at 04:49 PM Marco Graziani 2 comments

For all condominium corporations created prior to May 5^th, 2001, which is the date the Condominium Act, 1998 (the “Act”) came into force, consideration should be given to up-dating their organizational by-law (i.e. By-law No. 1). The provisions contained within their existing organizational by-laws are typically outdated and, in certain areas contradict the new Act requirements. The Act will prevail over any conflicting provisions contained within a condominium corporation’s organizational by-law. Accordingly, until the organizational by-law is updated, its provisions must be compared to the new provisions of the Act each and every time a provision of the by-law is relied upon. When revising this by-law, the board of directors should also consider making other organizational amendments (i.e. increasing the qualification requirements of directors).

City of Toronto Water Supply By-Law

Posted on January 11, 2010 at 09:19 AM Kristen Bailey No comments

Many towns and cities have by-laws that require the installation of backflow prevention devices on water lines that connect certain types of properties to the municipal water systems. Multi-residential buildings in Toronto with five or more units are required to comply with Toronto's Water Supply By-law, by installing a backflow prevention device on the building's water supply line branching off of the city's water line. The purpose of this requirement is protect the City's water supply from backflow water from the building. The type of device required depends on the occupancy of the building. The type of business operating in some commercial units may affect which device is required at your building, such as if that commercial business falls into the category of a Severe Hazard Industry (defined in the By-law). The deadlines for compliance with the By-law in Toronto have now passed, therefore if your condominium has not yet installed a backflow prevention device, the issue should be addressed as soon as possible.

The Impact of HST on Closing Costs: Buyer Beware!

Posted on January 04, 2010 at 08:09 PM John Moher No comments

If you are buying a newly constructed or substantially renovated home, you need to consider the impact of the HST, as this new tax and associated transitional rules could have a significant impact on your closing costs.  Click here to read more.

Alteration or No Alteration: The implications of the McMahon Hot Tub Case

Posted on December 30, 2009 at 04:09 PM Michael Pascu No comments

As previously posted on this BLOG, the Court of Appeal recently rendered its decision in the case of Wentworth Condominium Corporation No. 198 v. McMahon, known as the "hot tub case".

Cap on Closing Adjustments

Posted on December 23, 2009 at 11:23 AM John Moher 1 comment

I recently met with David Pylyp of RE/MAX Realty Specialists Inc. to discuss the problem of surprise closing adjustments and the need for a cap to be negotiated at the beginning of the purchase process. I learned that Mr. Pylyp is one of the select VIP Brokers privy to a cap on closing adjustments for purchasers of a unit in the newest phase of the trendy California Condos project by Camrost-Felcorp located in Etobicoke’s master-planned Mystic Pointe community. By being able to pass on such a cap to his clients, Mr. Pylyp will inevitably save his clients thousands of dollars and a series of painful headaches in the days leading up to final closing.  Click here to read more.

Interested in hearing of your successes

Posted on December 21, 2009 at 10:55 AM Kristen Bailey 1 comment

Does your board have a problem-solving success story that it would like to share?  Did you solve a unique problem in a particularly cost efficient way, or did your board successfully resolve a dispute with a disgruntled resident so that everyone walked away happy? Email your experiences and lessons learned to kbailey@finedeo.com for consideration in a future article.

Mandatory Metropasses for New Toronto Condominiums

Posted on December 17, 2009 at 05:50 PM Bradley Chaplick 1 comment

Toronto condominium developers will now be required to provide a 12-month Metropass with each residential condominium unit as a condition of obtaining the City of Toronto’s approval. At full price, the cost of a 12-month Metropass is more than $1300, although developers will benefit from a bulk purchase price discount. Importantly, the Metropass by-law does not apply to all new Toronto condominiums. In order to fall within the scope of the new requirement, the proposed condominium building:

1) must have 20 or more residential units; and,

The Home Renovation Tax Credit and Common Element Renovations

Posted on December 15, 2009 at 12:14 PM John Moher No comments

As part of the Government of Canada's economic action plan, Canadians living in condominiums will be able to claim a home renovation tax credit ("HRTC") for a portion of the costs associated with common element renovations.  By way of background, the program provides a 15% non-refundable income tax credit on eligible expenditures for eligible dwellings.  An expenditure is eligible if it is incurred in relation to a renovation or alteration of an "eligible dwelling". An "eligible dwelling" must be occupied as a principal residence by the owner, or a family member of the owner, between January 27, 2009 and February 1, 2010.  Further, the work performed or goods acquired must be performed or acquired, as the case may be, after January 27, 2009, but before February 1, 2010. 

Court of Appeal Delivers its Decision in the McMahon Hot Tub Case

Posted on December 10, 2009 at 02:05 PM Bradley Chaplick 2 comments

Click here for the complete decision.

In this case, the Court of Appeal dismissed the condominium corporation’s appeal, and held that a hot tub which had been installed on an exclusive use common element patio was not an “addition, alteration or improvement” under section 98(1) of the Condominium Act, 1998 (the “Act”).

Snow and Ice Removal - A Warning to Landlords

Posted on December 07, 2009 at 10:50 AM Bradley Chaplick No comments

Speaking to all of the landlords and tenants in Ontario, the recent case of Montgomery v. Van clarifies the duty to remove snow and ice.

Meetings Code of Conduct

Posted on December 02, 2009 at 04:45 PM Kristen Bailey No comments

In preparation for an AGM or other owners' meeting, a board and management team may wish to consider developing meeting guidelines or code of conduct to be distributed with the agenda package. This handout could explain things like the meeting procedure, the role of the chairperson, and acceptable and unacceptable conduct when voicing an opinion. Mutual respect amongst neighbours sometimes gets lost in a heated or contentious meeting, however, a preparatory list of easy-to-read guidelines can assist in making a meeting go more smoothly. 

Insurance Claims: Second Opinions are Valuable!

Posted on November 25, 2009 at 09:58 AM Michael Pascu No comments

When it comes to insurance claims, it is not always the case that the insurance agent or the insurance company knows best. Condominium corporations should always be on guard to protect their interests, and that means it would be prudent to question any decision, whether made by the insurance agent or the insurance company, that results in insurance coverage being denied or limited.

Decorating for the Holidays

Posted on November 23, 2009 at 02:38 PM Bradley Chaplick 2 comments

As the holiday season is upon us, I’m reminded of a story about Christmas decorations in a condominium building’s common element lobby. The friend who told me this story was a resident owner in the condominium building, and she happened to be Jewish. My only source of this story is her, so please keep that in mind as you read along.

No Smoking Rule

Posted on November 13, 2009 at 12:40 PM Kristen Bailey 3 comments

If the government fails to legislate a ban on smoking in multi-unit residential buildings, could a condominium corporation be held liable to a unit owner for a human rights violation regarding a resident's disability in the form of an allergy to second hand smoke?

The Mezuzah Conundrum - Religious Fixtures on Common Element Doorposts

Posted on November 09, 2009 at 11:49 AM Bradley Chaplick 1 comment

Over the years, there have been several court cases that set out the relationship between human rights and the Condominium Act, 1998. These cases have dealt with accessibility, reasonable accommodation, and surprisingly more than any other issue, pets. However, there has not yet been a reported case about mezuzahs (a mezuzah is a small scroll of Hebrew verses in a decorative case that is required to be affixed to the doorpost of the home under Jewish law).

Many condominium corporations’ rules prohibit any object from being affixed to the common elements, including doors and doorposts, without the prior written consent of the board of directors.  These rules are meant to control signs, advertising, and unwanted decoration from accumulating in the hallways. As well, section 98 of the Condominium Act prohibits unit owners from making changes to the common elements unless certain conditions are met. The statutory conditions, while appropriate for a large scale change to the common elements, are excessive when applied to affixing a mezuzah.

From these background facts, a couple of scenarios may arise: First, a unit owner who seeks to follow the proper procedure may request the consent of the board to affix a mezuzah.  If this occurs, the board should consent. As well, while the Condo Act does not permit an owner to make changes to the common elements, it appears to allow a condominium corporation to do so on the unit owner’s behalf.  Thus, both human rights law and condominium law can be satisfied by having the condominium corporation undertake to do the work.

But what about the second scenario, where a unit owner does not ask for permission, and installs his or her mezuzah without prior approval of the board? Can a board of directors demand that the unit owner take the mezuzah down? If the unit owner refuses, can the board have management take it down without the unit owner’s consent? These issues have not been resolved by the courts. Regardless of the legality of removing a mezuzah, it could be seen as inflammatory to do so.  The better response would be to grant permission retroactively, while holding the unit owner responsible for the cost of repairing any damage to the common elements, and simply ask that unit owners to observe the proper procedure in future cases.

Condominium issues that touch on religion often take on a heightened degree of intensity. Accordingly, boards and managers should seek legal counsel before attempting to enforce the Condominium Act, the declaration, the by-laws or rules that would appear to prohibit a particular religious practice. 

Whose interests does a board have to consider when managing the affairs of the corporation?

Posted on November 04, 2009 at 11:39 AM Kristen Bailey 1 comment

Whose interests does a board have to consider when managing the affairs of the corporation?  Obviously owners, because much of the Condominium Act addresses protection for owners. "Owners" is most often a present-tense status in the Act. Future owners' interests are addressed in at least two areas. The Act specifies the declarant's obligations to future owners (e.g. disclosure obligations and turnover requirements) and the requirement for a reserve fund study plan to forecast for 30 years suggests that the legislature contemplated protecting the interests of those owners who will arrive far in the future.

But what about the relationship between future owners and the current board's decision making?  Does the board have any obligation to consider the interests of future owners? Does that obligation require the board to balance the interests of future owners and current owners, for example when it comes to financial planning decisions. If so, who's interest can or should take priority?

Avoiding Fraud at Condominium Corporations

Posted on October 29, 2009 at 08:37 PM John Moher 4 comments

Unfortunately, many condominium corporations have been defrauded by contractors, employees, property managers and even board members. These condominium corporations had to learn the hard way that stringent internal checks and balances with the goal of preventing fraud must be in place at every condominium corporation.

Asbestos – A Thing of the Past? Maybe Not!

Posted on October 26, 2009 at 11:34 AM Marco Graziani 2 comments

It was surprising to hear that asbestos may have been present in commonly used building materials, such as acoustic ceiling tiles, textured finish on ceilings, vinyl floor tiles and/or drywall joint compound to name a few, up to the early 1980’s. Typically, if the material in question is in good condition and remains undisturbed, asbestos is not an immediate concern. That stated, if any remedial work is required to be conducted to an area in close proximity to, or that contains asbestos, then certain steps must be taken. It is clear that asbestos is considered to be a potentially serious health hazard and, accordingly, it is highly regulated, particularly by O. Reg. 278/05 of the Occupational Health and Safety Act, R.S.O. 1990 c. 0.1 among others. An assessment, by a qualified professional (i.e. an accredited engineer), would be required in order to determine the presence of asbestos. If asbestos is found, then the task at hand is not a small one for the board. The presence of asbestos in a condominium building will require the board to adopt both a scheduled asbestos maintenance program, along with a detailed procedure to follow when work is conducted that will or even may disrupt the asbestos. For buildings built up until the early 1980’s, an assessment of building components by the qualified professional is warranted. The board, in consultation with management, its engineers and solicitors, will have to address the matter by implementing a protocol that will protect the building’s residents and comply with the applicable legislation.

Mould - A Growing Issue

Posted on October 24, 2009 at 10:29 AM Marco Graziani 1 comment

Mould remediation is a growing issue for condominium corporations today.  There are many different kinds of mould, some of which may be harmless, while others may be hazardous.  Any area exposed to a high level of moisture creates the risk of mould development.  This may occur as a result of some failure (i.e. improper drainage of a fan coil unit or broken seal), the manner in which a unit owner conducts their day-to-day activities within their unit (i.e. lifestyle), or a  combination of the two.

Condominium corporations should take a proactive approach if a mould problem exists by having a qualified professional conduct the required testing, which should include an air quality test.  The determination of responsibility will require a number of considerations, such as:

1. what caused the mould to develop;
2. is the area affected part of the common elements, part of a unit, or both; and,
3. who is responsible to maintain/repair these areas.

In order to develop an effective remediation program, a condominium corporation’s board of directors must ensure that a qualified professional is providing guidance and an appropriate course of action.  Any effective remediation program must identify, address and remedy the cause of the mould contamination.  As mould contamination tends to create a number of issues for a condominium corporation, the board of directors may have to rely on a number of experts,  including its mould remediation professional, engineers and solicitors, in order to appropriately address the problem.

Is your Condo ready for HST?

Posted on October 23, 2009 at 01:22 PM John Moher 1 comment

As a board member or property manager, you NEED to be aware that the federal and provincial governments plan to merge GST and PST to create a single tax called the Harmonized Sales Tax (HST) and that it is scheduled to come into effect on July 1, 2010.  It is critically important that boards understand and appreciate that HST will have an enormous impact on condominium corporations.  Goods and services currently exempt from GST will be subject to HST and goods and services currently exempt from PST will be subject to HST.  The bottom line:  condominium corporations must budget for a 7-8% increase in prices for most goods and services under the new HST regime.  Many budgets for the period after HST is scheduled to come into effect do not account for HST.  This will inevitably lead to a budget deficit requiring corrective action by the board, whether in the form of a significant increase in common expenses or a special assessment.  When it comes time to prepare the next budget, remember to account for HST. 

Can an Ontario Board of Directors Ban Smoking Inside Condominium Units?

Posted on October 19, 2009 at 10:42 PM Mario Deo 2 comments

The wave seems to be gathering speed to ban smoking inside individual condo and apartment units. We all can accept by now that smoking is properly banned in all common areas of condominiums. How do we feel about the possibility that smoking in one's own private condominium may no longer be allowed? There is increasing acceptance that smoke does not necessarily remain contained in an owner's suite. For sure, in some condos, the smoker's cloud remains self-contained and does not harm anyone. In this type of condo, it would be difficult to pass a reasonable rule prohibiting residents from smoking in condominiums. But where it is shown that smoke from one or more units infiltrates other units or the common elements, a rule banning smoking inside the units is probably enforceable. However, the rule has to be properly researched and drafted by the corporation's lawyer. The various views on this topic are being hotly debated throughout the GTA and Ontario. Please refer to the recent Toronto Star article that indicates some municipalities are considering the ban. This municipal move may make the job of a board of directors much easier in those municipalities that choose to do so.

Policy Regarding Use of Handheld Electronic Devices while Driving

Posted on October 05, 2009 at 10:57 AM Kristen Bailey 1 comment

Companies that provide employees with cell phones, or require employees to be available (implicitly or explicitly) by cell phone for work purposes, should ensure that they have a policy in place regarding the use of cell phones while driving. The statistics on collisions caused by distracted cell phone-talking drivers are all over the news these days, as the new ban on using handsets while driving will come into effect this month.

Companies should be familiar with the new law and ensure that they have policies, which they actively enforce, either prohibiting or severely restricting and controlling the use of cell phones by employees while driving in the course of employment. Employers are typically considered in law to be vicariously liable for the negligence of their employees. For example, if a property manager talking on a cell phone driving from one condominium site to another causes a collision and as a result, people are injured, the property management company may become knee-deep in litigation with insurance companies and/or as a defendant in a civil claim. Having a cell phone policy or prohibition will not necessarily change this, but it could assist a company by reducing the likelihood that an employee would cause a collision in the first place, or could assist in a company's defence by showing that it took steps to prevent such an accident by implementing the policy restricting the employee's conduct while driving.

Blanket Alteration Agreements - A Good Idea?

Posted on September 29, 2009 at 09:58 PM Michael Pascu No comments

Every so often I run into property managers who tout the benefits of a condominium corporation registering a blanket alteration agreement on title to the units which contains a list of pre-approved alterations that the unit owners are permitted to do to the common elements. For example, within a townhouse complex, the agreement would set out a list of typical alterations that the board is prepared to approve in advance (such as deck installations and extensions, tree planting and other landscaping) complete with descriptions and specifications. The agreement would be executed by the corporation and all the unit owners and then registered on title to all the units.

Insurance Deductibles: Who must pay them?

Posted on September 24, 2009 at 10:50 AM Michael Pascu 4 comments

There is a perception that the unit owners who are "at fault" for causing the insured damage are always responsible to pay the insurance deductible amount. The reality is that, in many cases the "at fault" unit owner may not be responsible for any portion of the insurance deductible amount. How is that possible? Consider the scenario below.

A common situation involves a unit owner blocking a sink or toilet which results in an overflow of water into the unit.  The flood however causes either minimal damage or no damage to the unit of the "at fault" owner, but causes damage to the common elements and other units located directly below.

Clearly whether the repair cost is insured against by the corporation's insurance policy or not depends (at least in the first instance) on whether the repair cost is above or below the insurance deductible amount.

If the total cost to repair the flood damage is higher than the corporation’s insurance deductible, then the corporation must apply its insurance to cover the repair cost and may only look to the "at fault" owner to pay the insurance deductible. This is where problems may arise.

The first problem is that, under Section 105 (2) of the Act, the corporation may add to the common expenses payable by the "at fault" unit owner only those costs incurred to repair his or her unit (up to the deductible limit). For example, if the cost to repair the unit of the "at fault" unit owner is less than the amount of the insurance deductible, then only the actual amount incurred to repair the unit can be added to that unit’s common expenses and the remainder of the cost (up to the deductible limit) would have to be absorbed by the corporation. In cases where the unit of the "at fault" owner suffered no damage, the corporation would not be able to collect any portion of the insurance deductible from the "at fault" owner.

The second problem is that Section 105 (2) of the Act requires the corporation to establish that the flood damage was in fact caused by an “act or omission” of the owner. In those cases where the source of the blockage cannot be identified, the corporation would probably not be able to obtain the evidence necessary to prove the "act or omission". If the corporation proceeds in such cases to add the insurance deductible amount to the common expenses payable by the "at fault" owner and then to lien the unit to collect same, the corporation would be taking a risk that the lien may be subsequently invalidated if a legal challenge is mounted. If the lien is invalidated, the corporation would not only be required to absorb the original legal costs to register the lien, but also the legal costs to defend the owner's action and probably the owner's legal costs as well.

There are therefore potential situations where, either because the flood damage did not actually affect the unit of the "at fault" owner or because the corporation is unable to prove the "act or omission" of the "at fault" owner, the corporation will be unable to collect any portion of the insurance deductible amount from the "at fault" owner.

Is there a way to address such potential situations? Yes. The corporation may pass an insurance deductible by-law under Section 105(3) of the Act, which would make the owner of the unit from where the flood originated responsible to pay the entire cost of the flood repair, up to the insurance deductible amount, irrespective of which portion of the building was damaged, as long as the flood was not the result of any act or omission of the corporation. Such insurance deductible by-laws are so useful, it is hard to believe that many condominium corporations still do not have them.

Amend the Condominium Act, 1998 to Avoid the Creation of Tenements

Posted on September 10, 2009 at 12:05 PM Jonathan Fine No comments

Just as life as we know it started as a “primordial stew”, the Government of Ontario has concocted its own version of a condominium primordial stew which will create tenements and slums akin to the worst parts of Detroit and New York City.

How? By not putting any teeth into the requirements to create and execute a reserve fund funding plan, and to maintain a properly funded reserve fund. 

I have said all along that it appears to me that the Condominium Act, 1998 was created by a collection of beaurocrats and industry “leaders” who had this wonderful brainstorming session and came up with all sorts of ideas, but then forgot stages two and three of the process: vetting these ideas to weed out the bad ones, and then honing them so that they make sense and work.   

In this regard, the idea of a mandatory reserve fund, reserve fund study and reserve fund funding plan was a glorious and noble piece of paternalistic legislation BUT the legislation did not go far enough because there is no teeth in the legislation – i.e. no consequences for failure to follow these requirements.

This issue came to a head recently when I attended an annual general meeting where the auditor announced that not only was the condominium corporation not following its reserve fund funding plan, the reserve fund accounting entry was not supported by cash.  In other words, although the financial statements provided that the reserve fund account had $X in it, the money was not in the bank because it had been borrowed to pay for operations.

From the comments of the unit owners and the board of directors, it was clear to me that the building, which was at least 30 years old, was in dire need of some serious repairs and that the board of directors could not raise the common expenses to pay for these repairs for many reasons, including, that if they did so, they would simply be removed by a group of owners campaigning on the platform that they would not raise common expenses.

It was also clear to me that without assistance, this condominium corporation would never be able raise the necessary funds to properly maintain and repair the building and that consequently, the building would continue its downward slide and fall more and more into a state of disrepair.  Eventually it would become a broken down slum tenement building.

So what is the solution?

Put some teeth into the legislation.  If the government is going to be paternalistic, then be paternalistic!

Here’s my plan.

Amend the Condominium Act, 1998 to provide something like this (This is my initial draft and I would be interested in comments as to how to improve the wording and make it more workable):

131 a Any auditor who:

a.            is of the opinion that a condominium corporation is being managed in a fiscally irresponsible or incompetent way, including but not limited to the failure to pay its bills in a timely manner, or who,

b.            determines that

i.              a reserve fund funding plan has not been followed in a material manner for a period of at least 13 consecutive months; or that,

ii.             there have been materially insufficient funds in a bank account or accounts of the condominium corporation for a period of at least 13 consecutive months to support the amount that should be in the condominium corporation’s reserve fund account,

iii.            ??? (I would be interested in comments concerning criteria triggering the auditor’s obligation to seek counsel and apply for an administrator)

shall seek the opinion of a lawyer, at the condominium corporation’s cost, within 30 days of such determination as to whether there are reasonably sufficient grounds for the appointment of an administrator.

131 b. If the lawyer is of the opinion that there are reasonably sufficient grounds for the appointment of an administrator, then the auditor shall retain such lawyer, at the condominium corporation’s cost, to bring an application pursuant to s. 131 of the Act, for an order appointing an administrator.

131 c. for the purposes of this section, a condominium corporation shall be deemed to be being managed in a fiscally irresponsible or incompetent way if:

a.            a reserve fund funding plan has not been followed in a material manner for a period of at least 13 consecutive months;

b.            there have been materially insufficient funds in a bank account or accounts of the condominium corporation for a period of at least 13 consecutive months to support the amount that should be in the condominium corporation’s reserve fund account,

c.            ??? (I would be interested in comments concerning the definition of what is considered to be managing in a fiscally irresponsible or incompetent way)

131 d. Upon such an application, the court shall make the order if the court is satisfied that:

a.            a condominium corporation is being managed in a fiscally irresponsible or incompetent way, including but not limited to the failure to pay its bills in a timely manner; 

b.            a reserve fund funding plan has not been followed in a material manner for a period of at least 6 consecutive months; 

c.            there have been materially insufficient funds in a bank account or accounts of the condominium corporation for a period of at least 6 consecutive months to support the amount that should be in the condominium corporation’s reserve fund account; or that,

d.            ?

Clearly, the appointment of an administrator in such circumstances would result in an increase in common expenses and likely a special assessment which some, if not many, unit owners could not afford.  These owners would either have to make the necessary arrangements to borrow the required funds, or sell the unit (which they could not afford).  This may seem harsh,  but there are many people who live in various priced homes which they cannot afford and are required to sell as a result thereof – homes from lower priced condominium apartments to mansions in Rosedale and Forest Hill.  To be able to afford the privilege of owning real estate, it is not sufficient simply to come up with the funds to purchase it - one must also afford to maintain it in a good state of repair.  I welcome your comments.

2009 Condo Conference

Posted on September 03, 2009 at 07:25 PM Mario Deo 1 comment

PR: wait...  I: wait...  L: wait...  LD: wait...  I: wait... wait...  Rank: wait...  Traffic: wait...  Price: wait...  C: wait...

Unions and Condominiums: Think they Can't occupy the same space? Think Again!

Posted on August 19, 2009 at 12:53 PM Joseph Ryan 2 comments

Time and again we are met with nothing short of astonishment when, in discussing employment related issues with managers and directors of condominium corporations, we impress upon those individuals the need to be particularly attentive to employee relations and workplace issues in light of the fact that any condominium corporation that directly employs more than one employee, such as cleaning staff or superintendents, is vulnerable to having its workplace and such employees made subject to an application for certification by any one of a number of unions that have taken an interest in certifying bargaining units at condominiums.

It is not unusual to have condominium clients contact us in a panic because they have been served with an application for certification. Invariably, both management and the board are confounded as to how this could happen; how circumstances could arise that would lead to such steps being taken by the employees. After all, the employees are the ones, at the end of the day, who enlist the assistance of a union and ultimately have the final say in approving that union as its representative in negotiating a collective bargaining agreement.

All too often, when some simple, probing questions are asked, there is always an underlying reason – sometimes more than one - to which employee dissatisfaction can be attributed: the most common reasons are failure on the condominium corporation’s part to entertain any kind of pay raise for a period of time or failure to provide employees with any kind of non-monetary security such as group benefits.

To compound the unsettling effects of a certification application, management and condominium boards can find themselves doubly panicked when they learn just how short the timeframes are for responding to and dealing with these types of applications under the governing legislation, the Labour Relations Act. Before directors can catch their breath and get oriented to the process, they find themselves engaged in negotiations for a first collective bargaining agreement, while at the same time struggling to understand fully how they could be embroiled in such a costly process, particularly in situations where the corporation may employ as few as two employees.

When the dust settles on this process, and the parties involved on behalf of the condominium corporation have an opportunity to engage in some honest and objective reflection upon the circumstances that led to these events, they will come to realize that responsibility most often lies with the condominium corporation, as the employer, and management, as its representative in supervising employees, for having neglected to pay more attention to employee relations and, if employees are unhappy, failing to identify the issues that are making them unhappy so that those issues can be addresses in a meaningful way and without undue delay, if only because doing so will ultimately serve the best interest of the condominium corporation.

If the condominium corporation wishes to be pro-active in taking steps to avoid such circumstances, one might start with an examination of which issues are most important to your employees. In that examination, consider what employees stand to gain by enlisting the assistance of a union and by negotiating a collective agreement. Even review a few collective agreements to get an idea what protections, rights or entitlements (monetary and non-monetary) they offer. Then consider implementing some of those elements in your employment relationship with your employees. In doing so, be sensitive and alive to the fact that an issue that may seem insignificant to the employer may nevertheless be of great importance to the employees. Often, employees enlist the assistance of a union because sometimes just one of the many elements that make up an employment relationship is left unaddressed for too long and is allowed to fester into deeply seated discontent.

As but one example, one condominium client found itself negotiating a first collective bargaining agreement because, despite employee requests over a lengthy period of time, the corporation had failed to put employees’ pay on a system of direct deposit, which in turn led to instances where employees’ paycheques were late being issued.

Therefore, a word of warning: pay attention to your employees and their concerns. Failure to do so may lead to unexpected consequences. If the condominium corporation is not prepared to engage in that on-going analysis, or is not interested in either the responsibilities attendant on being an employer or the consequences of failing to address those responsibilities in a manner satisfactory to its employees, then the corporation should consider other options such as engaging independent service providers to provide those services to the condominium.

Inaugural Blog Posting - Condominium Classification

Posted on August 10, 2009 at 06:20 PM Mario Deo 4 comments

I’m pleased to post the first entry to our Condo Law BLOG and invite your comments. There are many newsworthy and interesting topics to discuss but the concept of  “Condominium Classification” seems to have sparked much interest and response to my recent editorials in CondoVoice. Regardless of one’s position, the topic is clearly gaining attention. A classification system is not new for commercial properties and hotels. The concept of “Condominium Classification” is similar and aims to set standards based on an objective assessment of the following categories:

1. The physical state of the common elements;

2. The financial health of the condominium corporation; and,

3. The quality of the building and the common elements.

The classifications ought to maintain certain standards in order to ensure investment values. The concept does invite discussion over the definition of the standards and issues relating to enforcement and accountability. Click here to read full text of my editorial relating to Condominium Classification.