BOARD HAS RIGHT TO DENY SCREENED-IN BALCONY
But reasons for refusal should be provided to the unit owner, notes Robert Noce.
Q: Three years ago we bought a condominium unit with a balcony overlooking a river, and each year we are inundated with mayflies from May until September. I approached the condo board for permission to screen in the patio, which would allow us to enjoy our property. The work was to be done by a firm specializing in such installations, and plans were submitted to the condo board for their review. Both my contractor and myself offered to meet with the board to answer any questions or concerns but the board simply denied approval, saying no permanent structures are allowed that could alter the appearance of the building exterior. We feel we are being unreasonably denied the enjoyment and use of our property, and in the event of a resale this mayfly situation would negatively impact our selling price. Our building was a new construction, and the builder knew of this issue but never disclosed it to potential purchasers. Do we have any recourse?
A: Probably not. There is a court decision from Edmonton in which an owner wanted to put up a type of screening on her window to minimize the sunlight. The screening would have been a different colour from the other windows. The board said “no” and the court agreed with the board. The other key point is the fact that a board must provide reasons as to why they have denied your request. If their decision is reasonable, then it is my opinion that a court of law would support a board’s decision. If this is of such importance to you, you may want to hire a lawyer to get a definitive answer on your question relating to your specific facts.
Helpful Hint: A condominium board has to balance the interests of all owners. Boards are required to receive requests and provide an explanation as to why a request was denied. If the board is acting within the law and the explanation is reasonable, a court will support the board. Courts give considerable deference to a board’s decision.
Q: It always seems difficult to get owners to volunteer to serve on the condominium board. Is it possible to offer financial compensation as an incentive? What would have to happen to allow this to take place?
A: Some condo boards in Alberta pay an honorarium to board members. The amount of the payment varies from board to board, and could be as simple as a payment of $50 per meeting. In order to provide board members with an honorarium, the power to do so must be in the bylaws of the condominium corporation. If the bylaws do not provide for that ability, then you cannot offer an honorarium. Check your bylaws.
Helpful Hint: I am not a big fan of paying board members an honorarium. However, if that is the will of the owners then you must have that power in your bylaws. If you do not, then amend your bylaws accordingly.
Q: Can a condominium board raise condo fees by 40 per cent without any notice, other than an email, and request that the new fee be paid immediately, stating that it was effective April 1 when we only got notice April 25? The board decided to allow the owners two months (May and June) to make up for the difference in the funds that had already been sent to the board for April 2017, and then the payments would revert back to the 40 per cent. Is this legal?
A: Yes, it is legal to increase your condominium fees by 40 per cent. From a legal perspective, there is nothing preventing a board from doing so. From a managerial and board governance perspective, I am shocked that a board would increase condominium fees by so much on a one-time basis. This tells me that the condominium corporation has, in the past, either budgeted poorly or they have significant costs coming up and they are reluctant to issue a special levy. The other key point is the fact that it would appear, based on your question, that the board did a very bad job of communicating its plans to owners. I am hopeful that an explanation was provided at the most recent annual general meeting, or some detailed explanation was provided to the owners by way of written correspondence.
Helpful Hint: When issues like this arise, get involved in your condominium. I am hopeful that this will entice people to attend the annual general meeting and perhaps get elected to the board so that other people can have a look at the current financial situation of your building.
Q: I have a question about condominium caveats. According to Service Alberta, caveats can be registered for unpaid condo contributions. Do unpaid back charges qualify (stemming from black mould charges that the insurance company didn’t pay and instead charged to the owner) for filing as a caveatable interest? The condo bylaws say all charges owed to the corporation are treated as condo contributions. This extraordinary statement in the bylaws seem to give condo corporations absolute powers in deeming anything owed to them as a condo contribution. Is this legal? Also, is there a time limit from the date of arrears to register this lien in Alberta, before the lien rights expire?
A: You are correct in that a condominium corporation can file a caveat against the unit for unpaid condominium fees. This is a basic condominium principle and there is no doubt in this regard. With respect to back charges or fines, as the law stands today there is a court decision which stands for the proposition that it is impermissible to structure the bylaws to convert an unpaid fine or back charge into a statutory charge. This is beyond the scope and intent of the Condominium Property Act and the powers of the condominium corporation.
In a court decision, the judge said: “A corporation can only assess units for expenses incurred or to be incurred by the corporation. Therefore, any attempt to ‘roll in’ to an assessment the corporation’s claims for unpaid fines or unpaid rent will fail.” If the back charges are significant, and the board is not dealing with you in a manner that you think is fair, then you need to hire a lawyer to get an answer for you. With respect to timelines, again, there is no quick answer. I do say, however, that condominium corporations should act quickly with all arrears. Do not let condominium arrears sit on the books for a long time, as you may prejudice your position in collecting all of the amount owing.
Helpful Hint: As you know, the Government of Alberta passed the amendments to the Condominium Property Act back in December 2014. The amendments will hopefully provide greater certainty on this issue. It is most unfortunate that the amendments are not even close to being proclaimed into law, which is causing great confusion and delay for people in the condominium industry. Therefore, if we are truly committed to helping owners and boards, then the Government of Alberta needs to move more quickly on these amendments.