Being a board member on either a Condominium Corporation or a
Home Owners Association ("HOA") board is often a
thankless job: numerous late nights in meetings, never ending
emails and phone calls, and constant decision making that sometimes
never seems to please anyone. All this without remuneration! That
being said, hard work and dedication of Board members is
fundamental to the well-being and longevity of a successful and
well-funded Condominium Corporation or HOA community.
As summer (finally) approaches, it is common for Boards to break
until the fall. Decisions on important issues are also sometimes
put on hold with a carry forward notation in the last meeting
minutes to be readdressed in the fall. In many cases, a Condominium
Corporation or a HOA will have their AGM in the fall, and the
important legal issues are delayed either because of the AGM, or
with the election of a new Board.
It is all too common that Boards will fail to address the
important decisions of a legal nature in a timely manner. While
Board members can take a well-deserved break over the summer months
they should be mindful that the clock on Alberta's Limitations
Act (the "Act") continues to tick. The Act specifically
3(1) Subject to section 11, if a claimant does not seek a
remedial order within:
(a) 2 years after the date on which the claimant first knew, or
in the circumstances ought to have known,
(i) that the injury for which the claimant seeks a remedial
order had occurred,
(ii) that the injury was attributable to conduct of the
(iii) that the injury, assuming liability on the part of the
defendant, warrants bringing a proceeding,
(b) 10 years after the claim arose,
Whichever period expires first, the defendant, on pleading this
Act as a defence, is entitled to immunity from liability in respect
of the claim.
We have seen too many times that a Board will become alerted to
an issue with roofing repairs, landscaping, paving, water leaks,
etc., and fail to pursue a cause of action to handle the situation,
and in a timely manner. We have experienced Boards trying to handle
the situation themselves but lose the window of opportunity to
commence an action due to Board turnover, vacations, AGM's,
Special Meetings, etc.
Board members need to know that:
The two (2) year "clock" under the Act starts to tick
from the date that the claimant knew or ought to have known that
(a) the issue occurred; (b) the issue was a result of the
defendant's conduct; and (c) the issue warranted bringing an
action. This imposes a somewhat objective test, and in fact the
clock can start ticking prior to the date of when the Board
actually uncovered the root of the issue.
There is a ten (10) year limitation period in Alberta, of which
is a complex rule that exceeds the scope of this article: if the
Board complies with the two (2) year rule as described above, the
odds of being offside of the Act are significantly reduced. When a
Board misses a limitation period under the Act, the Condominium
Corporation/HOA is effectively estopped from advancing a claim in
Court. The Board members may become personally liable in negligence
for failing to act in a timely and prudent manner and without the
best interests of the Condominium Corporation/HOA: a situation to
be avoided. Whether the Property Management company could also be
held liable may depend on the facts of the matter, but it would not
be a stretch.
Therefore, it is vital that your Boards are informed that they
need to "sound the alarm" as soon as a legal matter
arises: a quick call to one of our lawyers in the Condominium Group
will greatly assist Boards in understanding their position, their
avenues of recourse, and most importantly, the limitation
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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