Board policy differs greatly from condo bylaw amendment
QCan a condo board legally pass a bylaw that restricts the days of the month that owners or tenants may move in or out of the complex? In our situation, the condo board passed a bylaw that such moves cannot be undertaken over weekends or holidays. This presents a problem for tenants who are leaving their other rental on the last day of the month if it falls on a weekend, and it seems to go against the legal right to have full enjoyment of your property.
AFirst, a board cannot pass any bylaw amendment, only the owners can. Did the owners come together and pass a bylaw change that was supported by more than 75 per cent of the owners and unit factors? You need to confirm whether or not it was a board policy or a bylaw amendment. Those are significantly different, and you need to know that answer before determining your next step. If it was simply a board resolution or policy, owners can come together and force the board to change that policy. If it was a bylaw amendment, it would appear more than 75 per cent of the owners supported it, and therefore you need to ask your fellow owners why they would support such a thing.
Helpful Hint: There must have been some reason to force people to move out on the weekday as opposed to the weekend. However, boards should try to accommodate and understand the goal of condominium living should be to balance the interests of all of the owners, not just a few.
QI live on the first floor of a four-storey condominium. The first year I moved in I filed an insurance claim regarding the humming noise coming from the walls because the builder — at the time the building was still under warranty — could not fix it. Months passed, the noise lessened, and the claim was rejected because of it. Now the noise is back and the property manager is not doing anything about it. Since the insurance company said it is part of the common property, can I ask the board to do something about it so the insurance company can inspect my unit again? Do I have other options?
AIf you have an issue with respect to your unit that falls under common property, then it is the responsibility of the corporation to deal with it. The corporation may be required to hire someone to provide the board with a definitive answer as to the source of the humming. Boards do not have the ability to ignore an issue of this nature. Helpful Hint: Corporations have the responsibility to maintain and repair common property. If there is a genuine issue that needs to be addressed, the board must deal with it.
QWe have a clause in our bylaws that allows a limit of five investors to purchase condo units, and we currently have one rental unit occupied with the remaining 22 units being owner-occupied. The tenant has been invited to attend our general condo meetings, which has caused concern with many of the unit owners. The financial statements, reserve funds and social fund balance — along with the general business — are discussed at these meetings. We are a 23-unit complex and do not have a property manager; we are self-managed and co-operatively look after the day-to-day operation of the property. Our bylaws only mention owners pertaining to the operation of the corporation and being a board member, so we are not sure if the tenant should have access to all the financial information.
ABased on your question, it would appear that tenants are not allowed to sit on the board. As well, if a tenant wants to attend the annual general meeting, then the tenant should get a proxy from the owner to allow them to do so. Otherwise, the tenant has no standing to be at the annual general meeting. Finally, a bylaw that limits the number of investors in a condominium complex would be illegal and unenforceable.
Helpful Hint: I generally support bylaws that allow tenants to sit on the board. It encourages a much more friendly living atmosphere.
QAs a first-time homeowner, I am unfamiliar with the rights of a condo board and/or property management company. If a condo board wants to fine an owner for failing to pick up pet waste, can they do so without first communicating what the amount (or range) of the fine will be? Does any of this need to be stated in the bylaws? If the owner does not pay the fine, can the condo board legally place a caveat on the unit?
AFirst, the bylaws must allow the board to issue a fine for a breach. If there is nothing in the bylaws that gives the corporation the power to do so, then fines cannot be issued. Second, the real question for you is this: Why aren’t you picking up your pet’s waste? You live in a condominium complex and you share space with other people. Be respectful. Generally, a warning letter/ notice is the preferred approach before issuing a fine. Finally, if the corporation wants to enforce the provisions of the bylaws and the fine, they will need to do so through a court process.
Helpful Hint: When you live in a condominium corporation you have to follow the rules. As I have always said, if you cannot handle or follow rules or live with people then you probably should not live in a condominium.
Robert Noce, Q.C. is a partner with Miller Thomson LLP in both the Edmonton and Calgary offices. He welcomes your questions at rgarner@postmedia.com. Answers are not intended as legal opinions; readers are cautioned not to act on the information provided without seeking legal advice on their unique circumstances. Follow Noce on Twitter at @RobertNoce.