Should the board consult the owners before implementing changes ? (Part III)

Mechanical shovel Ottawa May 1 2011 R. Escayola.JPGIn our previous posts on this topic, we looked at the level of consultation required when the board contemplates renovation to the condominium or changes to the services provided to the owners.  Last post dealt specifically with the kind of work or changes that could be undertaken by the board without owner consultation or notice.

In other cases, the corporation must give notice to the owners and must obtain their approval prior to making an addition, alteration or improvement to the common elements (as opposed to repairing or maintaining what is already in place) or prior to implementing a change to the corporation’s assets or to the services provided to the owners.  The board’s obligation will vary depending on whether the nature and scope of the proposed change is considered to be “substantial” or “non-substantial” in nature.

Continue Reading

Conflict Between Condo Declaration and Religious - Part 2

Thumbnail image for mezuzah 1 .jpgIn a previous blog, we looked at a number of cases in the U.S. relating to condominium residents affixing mezuzot on the exterior unit doors. In Canada, there are no reported cases that specifically deal with mezuzot. However, the Supreme Court of Canada determined in 2004 that sincere personal religious beliefs override the terms of a condominium declaration and unit owners were allowed to erect a temporary ritual hut on their balconies (known as a Sukkah) despite the provisions of the declaration.  While this case and its ramifications has stirred some controversy in the legal community as to the extent to which a condominium corporation is required to accommodate religious beliefs, it is clear that condominium corporations do need to take religious beliefs and practices into account with enforcement matters.  Like most legal situations, especially in the realm of human rights, context and particular facts are critical and no two cases are the same.  However, the aforementioned mezuzah cases and the Supreme Court’s decision provide important factors to consider in the context of enforcement matters, including:

  • the reason for the unit owner’s infraction;
  • the underlying rationale for the rule or provision;
  • has the rule’s rationale been clearly communicated or has the corporation requested an explanation of the religious practice? 
  • are there any reasonable alternatives instead of strict enforcement or ignoring a rule?
  • have these alternatives been communicated or requested? and
  • has the rule been selectively enforced?

Ultimately, each situation is unique and it is always advisable to involve legal counsel as early as possible to avoid complications down the road.

Conflict Between Condo Declaration and Religious Practices

Thumbnail image for mezuzah 2.jpgIn the vast majority of instances, it is important for condominium corporations to actively enforce their declarations, by-laws and rules. In fact, section 17(3) of the Condominium Act, 1998 (the “Act”), imposes an obligation on condominium corporations to take all reasonable steps to ensure compliance. However, there are certain instances when condominium corporations should exercise discretion and obtain guidance from legal counsel before seeking to enforce.  An example of such a predicament is the placement of a mezuzah on a unit’s exterior doorframe.  This issue has previously received media coverage in the United States and has recently resurfaced. 

Common practice amongst most members of the Jewish faith is to affix a small ritual item on their doorposts known as a mezuzah, which contains biblical verses written on parchment. This ritual is regarded as a religious obligation and canonized as such in the Jewish Bible (the Torah).  A potential problem can arise when a condominium corporation has a rule prohibiting items placed or affixed outside of units. On the one hand, section 58 of the Act requires rules to be reasonable. Rationales for this rule can include stylistic consistency and integrity, maintaining property values, insurance requirements, or safety concerns.

The mezuzah controversy rose to prominence in Chicago in 2001, when the condominium association at the 378-unit Shoreline Towers adopted a rule banning “mats, boots, shoes, carts or objects of any sort… outside unit entrance doors”.  The Board determined that this rule must be enforced in an absolute manner, and accordingly, Shoreline Towers management removed the hallway mezuzot. 

Continue Reading

Q & A from Our Battle of the Proxies Seminar

We were unable to respond to all of the on-line questions submitted at our Battle of the Proxies Seminar.  Here are those questions and our answers.

Q: What about proxies that come in after the mentioned deadline time? 

A: The Act is silent on this question and there are different schools of thought on this.  On the one hand, many corporations accept proxies up until the time of voting.  Other corporations refuse to accept proxies submitted after the deadline for registration.

Q: When speaking about arrears for 30 days or more. Does this include any amount, i.e. $30 outstanding?

A: The amount is not relevant.  Section 49 of the Act states that an owner is not entitled to vote if any contributions have been in arrears for 30 days or more at the date of the meeting.

Q: What if the proxy is another unit owner that is in arrears? Is the proxy still able to vote on behalf of the unit owner?

A: The entitlement to vote and to appoint a proxy is dependent on the owner’s right to vote.  As the proxyholder is the agent for the owner, it does not matter if the proxyholder is not entitled to vote on his/her own behalf.

Q:  If a proxy holder signs in and the proxy is signed, but no names (for election) ticked, then you can ask them to tick the director(s) they want to vote for? The owner has authorized them to vote on their behalf -- is this correct?

A:  Definitely not! The proxyholder cannot tick off the directors' names.  The owner authorizes the proxyholder to vote on the owner’s behalf for directors selected by the owner.

Condo Group Seminar Recording

The recording of the Condo Group Seminar is available online for streaming. Click here to watch it.

Should condominium boards consult the owners before implementing changes ? (Part II)

Construction signs in Montréal R Escayola.JPGIn this series of posts, we are focusing on the level of owner consultation required when boards are contemplating renovations to the condominium or changes to the services provided to the owners.

As indicated in our last post, some decisions by the board require owner consultation while other decisions do not.  This post will focus on decisions by the board that do not require any owner consultation such as: 

  • Routine maintenance work and repairs; and
  • When the work is required to prevent injury or damage to the property

Continue Reading

Should the board consult the owners before implementing changes ? (Part I)

Buldozzer - R Escayola 2011.JPGWe are often asked to advise condominium corporations on the extent of owner consultation required before the board can implement a change or proceed with extensive work on the common elements. Do owners need to be consulted, for instance, before the board renovates the lobby, hires an on-site superintendent, installs a BBQ in the garden, or installs a cell phone tower on the roof [on this topic, see my prior blog]?

Clearly, if owner approval were required for everything before a board could act, not much would ever get done.  On the other hand, it may not be fair to let a handful of board members (as elected as they may be) impose on all other owners their views on what is required or desirable for the condominium.

In this series of posts, I will provide an overview of the board’s obligations (and the owners’ rights) when changes or extensive work is contemplated to the common elements or to the services provided by the condominium corporation. 

Continue Reading

The Differences Between Owning a House and Owning a Condominium

If you have wanted a detailed list cataloguing the differences between owning a home and owning a condominium you are in luck! Denise Lash recently presented to a large group at an HSBC event on the Differences Between Owning a House and Owning a Condominium.

Key topics of the presentation included:

  • Title / Ownership
  • Operation / Management
  • Compliance with Laws and Regulations
  • Pets
  • Alterations
  • Noise Issues
  • Move In / Move Out
  • Reserve Fund
  • Insurance

The presentation also included the following review sheets and checklists:

Please visit the Condo Reporter Seminars page to review our up-and-coming events. Please click here to register for our next seminar titled Battle of the Proxies: Everything a Condominium Corporation Needs to Know About Proxies! The session will be held atHeenan Blaikie's Toronto office located at 333 Bay Street, 29th Floor. You may also participate via Live Stream by simply logging onto www.condoreporter.com. Prior registration is required to view the Live Stream.

Jason Rivait in Green Building & Sustainable Strategies Magazine

In the latest issue of Green Building & Sustainable Strategies Magazine, Jason Rivait discusses whether unit owners can install electric vehicle outlets or charging stations in their parking spaces.

As an owner, you cannot install an electric vehicle outlet or charging station in your parking space without at least seeking the approval of the board of directors.

You can read Jason's full commentary on this by scrolling to page 19 of the magazine, titled, Law: Questions & Answers.

Luxury Condo and Disaster Protection

Tornado.jpgIn a recent post, we blogged about a developer who is developing a condominium comprised of safety deposit units. So far, that appears to be the smallest size unit that we have encountered. Now there is a developer in the US that is marketing what proposes to be the world’s strongest condominium. As reported on the Survival Condo website, a luxury condominium is being developed that can be used as a home and disaster survival shelter. This condominium is being constructed in a former nuclear missile silo, with a structure that was built to withstand a nuclear explosion. It is intended that this condominium will protect the owners not only from nuclear explosion, but from all kinds of potential disasters: hurricanes, tornadoes, earthquakes, drought, floods, volcanoes, pandemics, terrorism, doomsday, etc.

This condominium will have the usual amenities found in a luxury condominium such as an indoor pool, workout room, home theatre, classroom and library, pub and game room, and internet computer. In addition there will be some unique amenities: 

  • a five-year supply of freeze-dried and dehydrated survival food per person per unit
  • hydroponic gardens to produce fresh produce
  • an aquaculture system designed to provide fish for food
  • independent air supply, water supply and electricity (which includes local electric grid, a large wind turbine and a diesel generator)
  • military grade security system

Continue Reading