Canada: Owners Smoked Out By Neighbours

Last Updated: March 19 2014
Article by Robert Noce

Q: Each floor in our highrise condo has six suites. On one floor, the residents of one suite are heavy smokers. You can smell smoke throughout the other units and common area on the same floor. The smokers claim that they have the right to smoke in their unit. This has led to an uncomfortable secondhand smoke environment for the other owners. Since so many people are environmentally sensitive, is there anything that we can do?

A: First, if your current bylaws do not prevent cigarette smoking within the units, then these residents are allowed to smoke within their unit. I have recently drafted bylaws for condominium corporations that prevent cigarette smoke in any part of the building, including individual units. You may want to consider specifically amending your bylaws to prevent owners from smoking in their units. The problem is that you may have to "grandfather" the existing owners. Second, the condominium corporation may want to hire an engineer to look into whether or not the building is up to code with respect to preventing such infiltration of smoke from one unit to another or in the hallway.

Helpful hint: Remember, you all have to live together. Perhaps the board could ask residents if they could smoke outside as a sign of respect for fellow owners, or perhaps the board could offer to cover the cost of replacement cigarette products to assist them in quitting. Be creative!

Q: Our condo board president is sharing everything about our meeting and board activities with her non -owner live-in partner. He has access to her computer, where she receives confidential information, and he answers questions for her. We believe that he authors many of her documents. How do we stop this?

A: Unless you can prove this, I would suggest that you stop dwelling on this issue. Board members are not allowed to share confidential information with any party. If they do, and the condominium corporation suffers a loss or is exposed to liability, then the individual board member may expose him or herself to personal liability. If they are acting in bad faith and breaching that level of confidence, the condominium corporation's director liability insurance may not cover the board member.

Helpful hint: It is important that people understand their role on the board, and it is helpful for the property manager or the condominium corporation's legal counsel to remind them of this from time to time.

Q: Our condo board is concerned about our tenants' young children playing on the common property, in lane ways, parking areas and flower beds, which is dangerous and could lead to liability for the corporation if a child is injured. What is the condo board's liability insurance for, if not for this?

A: The condominium corporation has the authority to limit activity on its property, especially in lane ways and parking areas. I am hopeful that the corporation has an area which has been designated for people to gather and for kids to play. The fact that the condominium corporation has insurance does not mean that it has to use it; the corporation still has to minimize its liability.

Helpful hint: Even with insurance, people need to act responsibly, and parents should keep their kids in a safe play area within the property.

Q: A previous column indicated that it is not necessary to distribute approved minutes, only unapproved minutes. Is this true?

A: No. Approved minutes have the full legal force and effect of ensuring and understanding what the corporation is doing. Unapproved minutes mean nothing and have no legal effect.

Helpful hint: Minutes of a meeting are usually approved by the board at the next meeting and minutes from the AGM are approved at the following year's AGM.

Q: Last night, I received notice that every unit in my condominium complex will be receiving a special assessment that will total approximately $20,000 to $25,000 over the next three years. This makes no sense to me. Is there anything I can do about it?

A: To answer this question, one would have to review the resolutions of the board that approved the special assessment and under what basis they did so. If the special assessment is in accordance with the reserve fund study and plan, and the resolutions were properly approved by the board, then there may not be anything any of the owners could do to stop the special assessment. You may want to consider spreading the special assessment over a longer period of time, if possible.

Helpful hint: There is no prize at the end of the year for having the lowest condominium fees in Alberta. It is essential that boards budget properly and that condominium fees reflect reality, so that the operating costs are paid on a yearly basis and that sufficient funds are placed in the reserve fund. By doing so, you can avoid the need for special assessments.

Q: We live in a free-standing condo unit that has one other free-standing unit and an apartment-style complex across the alley from us. We have lived here for 20 years, and we are now incurring repairs and discovering things coming up in our bylaws that do not cover our repairs according to their interpretation. Our garage door, which is covered, needs to have the opener replaced. Our board is saying that that is our responsibility. Is this correct?

A: It is impossible to answer your question without reviewing your bylaws and your condominium plan. If in fact your bylaws and your condominium plan indicate that it is your responsibility, then the answer is very simple. Ask yourself if the cost of replacing a garage door opener warrants hiring a lawyer. As tedious as it sounds, you should take the time to review your bylaws.

Helpful hint: I know that it is not glamorous, but when you find yourself in this kind of situation, first look to your bylaws and your condominium plan. At the very least, you will have the information you need so that you can challenge the board if need be.

Originally published in the 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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