Should condominium boards consult the owners before implementing changes ? (Part II)
In 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
No Notice required when the work is to prevent damage or injury
The Act allows the board to make additions, alternations or improvement to the common elements without having to consult the owners in the following cases:
- When it is necessary to ensure the safety or security of persons using the property;
- When it is necessary to prevent imminent damage to the property or to its assets; or,
- When the estimated cost of the proposed work in any given month is no more than $1,000 or one per cent of the annual budgeted common expenses for the current fiscal year (whichever is greater).
For example, the decision to repair the roof (which may be required to prevent imminent damage to the property) or the decision to repair a deficient elevator (which may be required to ensure the safety of persons using the property) does not require prior consultation.
No notice required for repairs and maintenance
Section 97 of the Act also provides that no consultation or prior notice is required to be given to the owners when a corporation has an obligation to either repair or maintain common elements, and provided that it is using materials that are as reasonably close in quality to the original as is appropriate in accordance with current construction standards. After all, the corporation has a duty to maintain the corporation’s assets.
For example, the decision to repaint the lobby or to repair leaky windows, no matter how expensive the work may be, does not require prior consultation provided that the board uses materials as reasonably close in quality to the original. This means that the board cannot use the excuse of “required maintenance” to justify an upgrade or a complete re-design of the lobby or the courtyard. At the same time, owners cannot expect that a board will maintain the original construction if construction standards and materials have changed significantly.
What constitutes a “material change” ?
The difficulty is often in the determination of whether the board is using “materials reasonably close in quality to the original”.
We were recently involved in a dispute between a board and owners of a condominium corporation over whether the redesign of the courtyard constituted a “substantial change” requiring approval by the owners or simply maintenance not requiring owner approval.
According to the owners, the redesign of the courtyard included the removal of significant vegetation, the addition of parking spaces, changes to the design and shape of the courtyard and the replacement of the podium’s original red-brick with significantly different-looking limestone.
The board argued that the work constituted required maintenance and that it was using material that was “reasonably close in quality to the original” in any event.
As part of the evidence, the owners filed pictures taken of the podium showing the original brick and the various proposals considered by the board. The owners submitted that the limestone could not possibly constitute material close in quality to the original. This question was eventually settled between the parties but not without the parties having incurred significant legal costs.
Far too often even well-intentioned boards find themselves between a rock and a hard place, attempting to please the owners while, at the same time, attempting to meet their statutory obligation to maintain the common elements and the property. Change is never easy. To avoid significant controversy and costly litigation, it is important to properly manage change and to understand the rights and obligations of the corporation and of the owners.
In our next post, we will look at changes that do require either notice to the owners or owner approval before they are implemented.