Canada: Condo Questions: Bylaw Amendment Required To Butt Out Balcony Smoking

Last Updated: July 9 2015
Article by Robert Noce

If a condo board wants to ban smoking on balconies it has to amend bylaws rather than passing a policy at the board level.

Q: I live in an apartment-style condominium. A few months ago, the board adopted a policy to ban smoking on balconies. Is this legal? The policy does not state what will happen if an occupant is caught smoking, but the board has indicated it may levy fines.

A: The Court of Appeal of Alberta has made it clear that condominium corporations can pass policies and rules to deal with the day-to-day operations of condominiums. In fact, the proposed changes to the Condominium Property Act confirm this. However, it is my opinion that a board policy banning smoking on balconies is illegal. Any prohibition on smoking should be done by way of a bylaw amendment. I appreciate that passing a policy at the board level is much easier than getting the support of owners to change the bylaws.

Helpful Hint: To change your bylaws, your condo board requires the support and approval of 75 per cent of the owners and unit factors.

Q: Many years ago, we had all of the poplar trees in our condo complex removed due to evasive issues in the sewers. However, we are beside a schoolyard and park that still have massive poplars. It has been determined that these trees are causing continuous and expensive drainage problems, plus health and safety concerns that are affecting our condo complex. The municipality is not agreeable to helping us fix this problem by removing the trees. What are our options?

A: First, this is not a condominium issue, but rather a municipal issue. Therefore, I strongly suggest that your condominium corporation hire an expert to provide you with a definitive opinion as to the safety and health issues you have identified. When you have this information, you should then make an appointment with the municipal councillor for the area and ask the councillor to intervene on your behalf.

Helpful Hint: This is a complicated issue, but with proper evidence and the engagement of your municipal council, you may get some resolution.

Q: Our 33-year-old condominium corporation is using 99-year leases to allocate exclusive-use common property parking and interior storage. None of these so-called leases can be delineated or identified on the condominium plan. Are these leases legal?

A: The short answer to your question is no. To provide owners with exclusive use with respect to common property, it must be delineated on the condominium plan. I would suggest that these leases are illegal. In fact, there are several Alberta court cases that have discussed these long-term leases. The board and/or owners may want to engage a lawyer to assist in dealing with this issue. Unfortunately, your only option to deal with this issue may be the court system, and getting an order declaring that these leases are illegal.

Helpful Hint: Unfortunately, in these types of disputes the condominium corporation may be forced to go to court to get some form of court order declaring that the leases are illegal. This can be costly and time-consuming.

Q: I live in an apartment-style condo complex that does not have an age restriction. I plan on renting my unit to someone who is at least 45 years of age and does not have any children. Our condo board tells me this is discriminatory. There is nothing in our bylaws that says I cannot rent to whom I wish.

A: First, you are free to rent your unit to whomever you want, subject to your bylaws. Since you have no age restrictions in your bylaws, you can rent to whomever you want. Your condominium corporation has no say in the matter. Whether something is or isn't discriminatory will be an issue between you as landlord and your proposed renter. Your condominium corporation should mind its own business, and perhaps you should be more discreet with your intentions. Helpful Hint: The Condominium Property Act and the courts in Alberta have confirmed that owners are free to rent out their units, just be mindful of your bylaws.

Q: We own a rental townhouse-style condominium with hot water heating. It is currently for sale and vacant. However, we have someone checking it every three days. Several months ago, a realtor showed the condo unit and did not lock the door. The wind blew the door open and the pipes froze, causing about $8,000 in repairs, which we have completed. The realtor claims he closed the door and is not responsible for the damage. Our insurance company claims that since the unit is vacant our insurance will not cover the water damage. The condominium corporation insurance claims that the repairs do not exceed their $10,000 deductible, and therefore we are responsible for the repairs. Our insurance adjuster advised us that all pipes are considered common property and any water damage is the responsibility of the condominium corporation, regardless of circumstances. Is this correct?

A: I would need to review your condominium plan and bylaws to answer this question. Also, there have been some recent court decisions which suggest that condominium corporations can go after an owner (provided the right to go after an owner exists in the bylaws) for the deductible. Therefore, you may end up in the same position you are in right now. There are different rules in place with respect to insurance when you have a vacant home or condominium unit. You should follow up with your insurer to make sure that you are compliant and fully insured. You may also have a claim against the realtor if you can prove that he did in fact leave the door open. This is an absolute mess, but the dollar amount probably does not warrant litigation. You may want to chalk this up to a very expensive learning experience.

Helpful Hint: Sometimes the cost of litigation does not make legal action worth your while. Even though you may be justified, there are times when it is cheaper just to pay the damages and be done with it.

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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