Board leaving owners in the cold
Low fees should never eclipse basic needs like adequate heat
Q: For the past four years, the board has decided that unit owners in our downtown condo building will not receive any heat when the temperature outside is 8C or higher. We have individual thermostats in our suites that we are able to control, but the cut-off point is now 8C. In the meantime, we are shivering. Is this legal? Water and heat are included in our condo fees.
A: This is appalling. Your condo board is acting inappropriately and in bad faith. It costs money to operate a condominium complex, and there is no prize for having the lowest condominium fees in Alberta. I believe that the board is exposing themselves to personal liability in this case. Owners and occupants are entitled to personal comfort of the most basic kind, and not everybody has the same tolerance for temperatures, which is why thermostats can be controlled from within each unit.
Helpful hint: While economy is important, boards need to use common sense.
Q: Condo owners and renters are using the visitor parking stalls as if they were their own. Our property management company has issued temporary decals for visitors, sent out notices to each owner and put up signs. However, all of this has been ignored. How can we deal with this issue?
A: This is really an administrative issue, but I will try to help. The board may want to consider temporarily hiring a parking lot attendant to manage the stalls. This will enable you to get a better idea of whether the problem is widespread or involves only a few people.
Helpful hint: People who live in a condominium complex need to follow the parking rules, which is all part of respecting the common property.
Q: We purchased a condominium in a 60-unit, fiveyear-old building. Twenty units have been sold, and the developer owns the remaining 40, which are now rentals. The developer has the majority of the unit factors, and is using this majority to vote to his advantage. At our next AGM, can we have the developer declared in conflict of interest and therefore ineligible to vote for board members?
A: The short answer to your question is no, based on the facts that you have provided. As an owner, the developer is entitled to vote.
Helpful hint: You may want to investigate whether the developer is doing anything contrary to the Condominium Property Act to gain a personal benefit from controlling the board. Q: Only draft minutes are distributed to owners in our condo complex, and these come immediately following each board meeting. Draft minutes of the following meeting show the previous minutes were approved. Is this practice acceptable? A: Yes. Until the minutes have been approved by the board at its next board meeting, the minutes are simply a draft. If the board circulates the draft minutes, then it is doing so as a courtesy. There is nothing wrong with what you have described. Helpful hint: Providing owners with information as to what is going on within the condominium project is helpful. Q: Can a condo board require that owners have prospective tenants’ criminal background checked, then obtain board approval of tenants before renting? A: There is no case law directly stating how such a bylaw or request would be interpreted and/or enforced by the courts. I have consulted orders issued from the Office of the Information and Privacy Commissioner of Alberta, which provide some guidance, but are not determinative. The Office found that the Real Estate Council of Alberta was permitted to collect and use personal information concerning applicants’ criminal records when licensing realtors in Alberta, and discharging its public duties of detecting and suppressing mortgage fraud in the province. By contrast, landlords are discouraged from demanding a criminal-background check on prospective tenants. With respect to condominium corporations, the answer is somewhat contingent on the purposes for which the condominium corporation intends the criminal record information to be used, and the actual use the condominium corporation puts it to. Helpful hint: Although it is helpful to have as much information about tenants as possible, obtaining criminal background checks may not be legal. Q: Last year, each unit in my condominium building received a special assessment of $80,000 to $100,000. The total assessment was for $5 million. The money was used to repair the condominium building. The board managed to save $1.5 million. The unit owners were expecting a refund, but the condominium corporation says it is not legal to refund the leftover money. The reserve fund is now sitting at $2 million. Should special assessment overcharges be given back to unit owners, or just kept by the corporation? A: The Condominium Property Act does not allow the condominium corporation to return the funds. The money in the capital replacement reserve fund is an asset of the condominium corporation and no part of that money shall be refunded or distributed to any owner of a unit except where the owners and the property cease to be governed by this Condominium Property Act (see: s. 38(3), Condominium Property Act). Another challenging aspect is the fact that some of the owners who paid the special assessment may no longer be owners. Helpful hint: What may seem logical to owners must be read in the context of the Condominium Property Act. Greater care should be taken when budgeting for special assessments so as to avoid these scenarios. Q: We are considering buying a pet-friendly condo unit, but are concerned that in the future the condo board may change the rules and disallow pets. Can we include a clause in the purchase agreement to ensure that for as long as we live in our condo, we will be allowed to have pets? A: First, the pet provision in your bylaws can only be changed by way of a bylaw amendment voted on by the ownersmakingup75percent of the owners and unit factors. Second, there is nothing that you can include in your purchase agreement or any other legal agreement that would prevent the owners from changing the bylaws within your condominium corporation. Helpful hint: The reason that the threshold is high to change bylaws in Alberta is because people need (and want) certainty for the rules of their home.