Canada: Condos Q&A

Last Updated: February 16 2014
Article by Robert Noce

Q: My condominium unit seems to function as a "vent stack" for most of the building. Almost every day, soap suds and bubbles rise into the toilet bowl, and often onto the bathroom floor. I often hear air venting up through the kitchen sink on the south side of the unit. Recently, the board has recognized that there is a problem, but it takes the position that the problem is as a result of a design flaw when the building was built nine years ago. Since it is supposedly a design flaw, the board says it is not responsible for correcting the problem. What can I do?

A: The Condominium Property Act is clear: The condominium corporation has a duty to repair and maintain condominium property. In fact, there was a recent decision from our courts that dealt with cigarette smoke entering into one unit from another as a result of a design flaw by the original developer. The court found that it was the responsibility of the condominium corporation to locate and fix the problem. I would take the position that if the plumbing is condominium owned property (which I will assume it is) then the condominium corporation will have the responsibility and duty to repair it, even though the cost may be significant.

Helpful hint: Given the cost to assess and repair the damage described, I would strongly urge the owner of the unit and the condominium corporation to each hire a lawyer to get an opinion with respect to each party's liability.

Q: There are parking issues in my condominium complex, which have prompted the board to post signs restricting parking on any part of the residential complex except driveways. This seems excessive, and makes it difficult for visitors to park. Is there a condo bylaw regarding parking restrictions?

A: I will assume that the parking in the condominium project is common property. Therefore, the condominium corporation does have the ability to control parking. You need to review your bylaws to determine whether they deal with parking. There is nothing under the Condominium Property Act that gives guidance on this issue. I would suspect that part of the project's development permit requires visitor parking stalls as a condition of approval. If that's the case, it would be contrary to the approved development permit to remove all visitor parking from the site.

Helpful hint: Residents need to be aware of the parking rules in their condominium complexes, and there should always be proper signage, to reduce parking complaints.

Q: Our condo board recently issued a general notice of infraction to all owners, regardless of whether the owners had actually contravened any bylaws. The notice states that it will serve as all owners' first notice of infraction, and any further contraventions by the owner will result in fines. Is this legitimate?

A: My initial reaction would be that the general notice of infraction has no force or effect; it makes no sense. Review your bylaws to determine first whether or not the condominium corporation has the authority to issue fines. If your bylaws do allow the board to issue fines, then you should review the process that the board must follow.

Helpful hint: Sending out a general notice of infraction to owners does nothing to build the relationship between the board and owners. If I were on the board, I would take the time to review the real intent of the general notice of infraction.

Q: When I requested the minutes for last year's meetings, I was told that I had to pay for a copy. How do I get the minutes without being charged?

A: There is nothing under the Condominium Property Act that deals with this. If your bylaws are silent on this, then it is usually up to the property manager pursuant to its agreement with the condominium corporation. Some condominium corporations post all of the minutes on a secure website, which owners can access at no cost.

Helpful hint: It is not unreasonable for the condominium corporation to charge for photocopy costs for minutes.

Q: I live in a condominium complex that has 24 units, including 12 duplex bungalows and 12 four-level splits. The 12 duplexes have significantly larger square footage than the split levels. When the builder registered the complex, it split the unit factors evenly throughout the units. We all pay the same amount of condo fees per month. Is that fair? Why should units with less square footage pay the same fee as those owning the larger units? Can this be brought to an AGM to be changed?

A: Fairness has nothing to do with this. The Condominium Property Act specifically states that condominium fees must be based on unit factors or some other method if your bylaws allow you to do so. The developer did nothing wrong in terms of allocating the unit factors among the units equally. You could try to amend your condominium plan, which would include the redistribution of unit factors. This would require a special resolution, which means 75 per cent of the owners and unit factors must support the change. My guess is that you will not be successful in changing the distribution of unit factors because for you to pay less in condo fees would mean that the owners with larger units would have to pay more, and would likely not support the change.

Helpful hint: Condo fees are an important aspect of condominium living, and buyers must take the time to review how they are assessed and decide whether or not they can live with it.

Q: We had an extraordinary general meeting in 2012, and our condominium board was removed. Without owner authorization, substantial unbudgeted expenditures had been undertaken, many of which were not described in the reserve fund study. Our current property manager advises that condo fees will increase and a special assessment must be levied. What steps can be taken to hold the previous board members and their property manager legally and financially accountable for mismanaging the condominium corporation's finances?

A: First, if you can establish that the board has acted in bad faith and has done something contrary to the Condominium Property Act and/or the bylaws of the condominium corporation, you may be entitled to bring an action against the previous board members for "improper conduct". I would strongly urge the new board to hire a lawyer to provide the condominium corporation with an opinion as to the liability of the previous board members. With respect to your property manager, please keep in mind that the property manager is the agent of the condominium corporation. They follow the direction of the board.

The property manager can advise the board when they are doing something contrary to the Condominium Property Act or the bylaws, but ultimately the decision rests with the board.

Helpful hint: The allegation you raised is serious, and you should get some independent legal advice, as well as refrain from accusing the previous board of wrongdoing before you can prove it.

Originally published in The Edmonton Journal.

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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Robert Noce
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