Canada: Condo Questions: Smoking, Noisy Neighbours Stir Up Trouble

Last Updated: May 5 2015
Article by Robert Noce

Q: We own a small two-bedroom townhouse. We share walls with our next-door neighbour, as well as the neighbours behind us. We often have a horrible smoke smell that comes from the neighbours behind us. We have talked to the property manager about it, but she does not think there is anything that can be done. We have a new baby, and this is a concern for us. Sometimes the smell is so bad that we have had to leave and stay somewhere else. Our neighbours have parties almost every night of the week, which means loud noises, yelling, and sometimes fighting. I am wondering if you can shed any light on the subject, and if there is anything you can recommend that we do.

A: I was involved in a case that discussed the duties of a condominium corporation when a risk has been identified within the common property, which could affect the health or safety of unit owners. In that particular case, the owner hired an engineer to assess the mechanical operations of the condominium corporation, and it was determined that there was a problem with the ventilation system allowing second-hand smoke infiltration into other units. The condominium corporation took the position that the air filtration was at an acceptable standard.

The Court determined that the condominium corporation is responsible for the control and management of the common property, and the Condominium Property Act imposed not only a duty to maintain but an obligation on the part of the condominium corporation to correct deficiencies, or at the very least to investigate. Therefore, the condominium corporation may want to hire an engineer to assist in determining whether or not there is a problem with the air filtration in your condominium project.

Helpful Hint: If you cannot get any satisfaction from the condominium corporation, you may want to get some legal advice in terms of your options. Or, worst case scenario, you may want to consider moving.

Q: Can a board make decisions via email between meetings, and confirm decisions by recording them in the minutes at the next official board meeting?

A: If your bylaws do not allow you to vote electronically, then you cannot do so by email. There is nothing wrong with the board having a discussion about a particular issue and getting feedback from the board members via email. However, I would caution a board not to act upon an email vote. I appreciate the fact that an email discussion or vote will be ratified at the next board meeting; however, there may be a gap in time between the electronic vote and the actual board meeting. A board runs the risk of an owner challenging a decision and arguing that there is no valid decision for the board to act upon, given the fact that the bylaws do not give the board any authority to do so via email. Helpful Hint: The amendments that will be proclaimed someday in the future, with respect to the Condominium Property Act, will give all condominium corporations the opportunity to allow board members to participate by electronic voting.

Q: Our condominium is a four-storey building. There are eight residents who want to install awnings on the fourth-floor balconies, as they have no roof. Many owners are against it. What is the protocol for the board? Does the board need the approval of 75 per cent of owners?

A: This would be an issue for the owners to decide and not simply the board. There may be structural issues that need to be addressed, as well as the impact to other owners. I can understand why the fourth-floor residents want the awnings; however, their desire for them may not be consistent with the majority of owners.

Helpful Hint: Condominium living can be difficult at times. As an owner, you have to remember that some of the things that you want may not be acceptable on a broader level.

Q: Our condominium board is drafting a set of architectural standards that are much more comprehensive than the one-page document provided by the developer. Some feel that the new document should be registered with Land Titles, as the current building standards document is not. What are the advantages of registration? Will one of the restrictions be the need to secure 75 per cent approval of the owners to change if registered? Will the registration make the proposed standards any more enforceable?

A: Obviously, registering your architectural guidelines in your bylaws would make it clear and understandable for all of the existing and future owners. There will be no doubt in anyone's mind in terms of their legal responsibilities. Second, you will require the approval of 75 per cent of the owners and unit factors to support a change to the bylaws. As well, any breach of a bylaw would allow the condominium corporation to take active steps to enforce them.

Helpful Hint: If you are just beginning your journey together as a board, and this is a brand new condo development, this might be a good time to engage a lawyer to advise you with these types of decisions, as it can help you save money on lawyer fees down the road, when you would need to correct a mistake.

Q: I am the president of my condo board. Our property manager sends the board the invoices each month before they are paid. Although all board members receive the invoices, our current procedure is that one member (me) writes back to the property manager to approve payment, and the property manager goes ahead and pays the invoices. This is an efficient process. However, am I opening myself up to liability by being the only one who formally approves the invoices?

A: If you approve the payment of an invoice, and someone later suggests that you had no authority to do so, then you will have a problem. You may want to have another board member approve the invoices and sign the cheques with you. The more checks and balances that are in place when dealing with money, the less likelihood that someone will be able to challenge you.

Helpful Hint: The key to minimizing risk with respect to money is ensuring that there are checks and balances in the system.

Originally published by 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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