Can caregiver live in age-restricted condo?
Alberta court ruled on status of medical aide in 2012 case
Q: My question relates to agerestricted condominiums. If previous bylaws allowed for an underage person to provide medical assistance and be considered a caregiver rather than an occupant, would that not be grandfathered into new bylaws so that a person may occupy for specified periods of time for compassion reasons? If you are sick and you need family help and the only one available is under the minimum age, would that be allowed?
A: I cannot comment on your bylaws; however, the issue you raised is interesting. In 2012, the Alberta Court of Queen’s Bench dealt with a case wherein a condominium corporation brought an action in court against a husband and wife (owners) of a unit alleging that the owners were in violation of the bylaws, and for an injunction restricting the use of a live-in caregiver. The husband was 87 years old and his wife suffered from dementia. They lived in their condominium unit together from January 2000 to October 2011, when the wife was moved into a nursing home. The husband lived in the unit with his 24-hour caregiver. The bylaws stated: “An owner SHALL NOT use or permit the use of his Residential Unit other than as a single family dwelling or for a purpose other than for residential purposes.” The court disagreed with the condominium corporation’s legal case and said: “It is after considering the Condominium Bylaws as a whole that (the Court) concludes that the presence in a unit of a live-in caregiver, who is required to provide necessary assistance to infirm residents, does not mean the unit is ‘being used other than as a single family dwelling or for a purpose other than for residential purposes.’ ” The application for a permanent injunction, monetary sanction and costs was denied. Helpful Hint: This is not a black-and-white issue, but rather would depend on the unique circumstances of each case. If you were faced with this sort of situation, it would be helpful to write a detailed letter to the condominium board beforehand, detailing the medical reasons why this caregiver was required and advising about the time that the person would be required to reside in the unit.
Q: I own a condominium unit in Edmonton that I rent out as an income property. I recently paid to treat a bed-bug infestation caused by other units. This involved paying a company to totally seal my unit to protect against bed bugs. Unfortunately, the unit above me had a pipe burst and the tenant did not call the condo board, but tried to soak up the water with towels. As a result, my unit got serious water damage in the ceiling and walls, and the drywall has been cut out for repairs. I am frustrated because I just spent all this money sealing my unit, and because of ongoing repairs my tenants want a discount on rent, which I think is fair. Who should pay for the discount on rent and for the re-sealing against bed bugs?
A: With respect to the discount on rent, this is an issue between you and your tenant. Ultimately, if you offer a discount to your tenant, you will pay for it. Whether you have a claim against the condominium corporation or not remains to be seen. It is difficult to give you an answer in that regard. However, I trust that the condominium corporation’s insurance is picking up the costs of the repairs. As for the cost of re-sealing your unit against bed bugs, it may be a cost that the condominium corporation agrees to pay. Helpful Hint: Under the Condominium Property Act, condominium corporations must insure the common property. The corporation must also insure units that are located within a building. The corporation does not have to insure improvements to conventional units, unless the bylaws say they must. If the units are bare land units, the corporation does not have to insure the units unless the bylaws expressly say so.
Q: I own a bare land condominium. I understand that to amend, repeal or replace bylaws a special resolution is required, which means 75 per cent of the owners and unit factors need to support the change. If a new bylaw is introduced, do you require the support of 75 per cent of the owners or unit factors? As well, what determines a quorum of the owners or unit factors at an Annual General Meeting?
A: Any bylaw amendment, or the addition of new bylaws, requires the support of 75 per cent of the owners and unit factors. With respect to quorum at an AGM, you need to refer to your bylaws, as each condominium corporation has their own rules. Helpful Hint: The threshold for bylaw changes is high, and that is a good thing because you do not want to be subjected to changes in your building on a regular basis.
Q: As appeared in the independent auditor’s report, our bare land condo board transferred funds from our operating fund to the reserve fund on top of the budgeted allocation of transfer funds to the reserve fund. Is this legal?
A: It may very well be legal, in that one would need to review your reserve fund study to determine whether or not the reserve fund required additional funds. If there was a surplus in the operating funds then that money may go into the reserve fund, which means that the owners will not be required to pay more into the fund. There is nothing wrong with that approach. Helpful Hint: Having a healthy reserve fund adds value to your condominium.
Q: How often should kitchen drains be professionally cleaned? We are a 20-yearold building and most suites have in-sink garbage disposal units.
A: The condominium corporation has a responsibility to maintain and repair condominiums and common property. I hope that the condominium corporation is doing its regular maintenance, as it is a legal requirement on their part, but I do not know how often this needs to be on the maintenance schedule. Helpful Hint: Your condo’s property management company should be on top of this type of ongoing preventive maintenance.
Robert Noce, Q.C. is a partner with Miller Thomson LLP in both the Edmonton and Calgary offices. He welcomes your questions at condos@ edmontonjournal.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