Noisy, un­safe pocket bikes can be banned

Toronto Star - - Condo Living - Gerry Hy­man Condo Law

Q I am a board mem­ber in a town­house con­do­minium that has private road­ways. Re­cently, we have had a prob­lem with ir­re­spon­si­ble par­ents who per­mit chil­dren as young as 6 to ride minia­ture, mo­tor­ized scoot­ers on the roads and path­ways of the com­mon el­e­ments. I be­lieve th­ese tiny mo­tor­cy­cles can reach speeds of 50 km/h and con­sti­tute a dan­ger to both the child driv­ers and pedes­tri­ans. A po­lice of­fi­cer ad­vised that if one owner files an ob­jec­tion with the board to the use of th­ese ve­hi­cles, the board must ban them and en­force the ban. Is that cor­rect? A A re­cent Toronto Star ar­ti­cle pointed out that the so-called pocket bikes can reach speeds of 100 km/h, with noise com­pa­ra­ble to that pro­duced by chain­saws. They are il­le­gal on roads or side­walks but their sta­tus on private prop­erty ap­pears un­clear. In or­der for a board to act, use of the ve­hi­cles must con­tra­vene the Con­do­minium Act or the dec­la­ra­tion, by­laws or rules of the con­do­minium cor­po­ra­tion.

The cor­po­ra­tion likely has a rule pro­hibit­ing any con­duct that con­sti­tutes a nui­sance or in­ter­feres with the use and en­joy­ment of the unit or com­mon el­e­ments by a unit owner or oc­cu­pant. Many dec­la­ra­tions pro­hibit con­duct that may re­sult in a sig­nif­i­cant in­crease in the pre­mium for any con­do­minium in­sur­ance pol­icy.

The use of mo­tor­ized ve­hi­cles by chil­dren en­tails the risk of in­jury to the driver or oth­ers, and the pos­si­bil­ity of a law­suit against the cor­po­ra­tion, re­sult­ing in an in­crease in the pre­mium for the cor­po­ra­tion’s li­a­bil­ity in­sur­ance.

The board might also rely on sec­tion 117 of the Con­do­minium Act. It says, “No per­son shall per­mit a con­di­tion to ex­ist or carry on an ac­tiv­ity in a unit or on the com­mon el­e­ments if the con­di­tion or ac­tiv­ity is likely to dam­age the prop­erty or cause in­jury to an in­di­vid­ual.”

The board could ini­ti­ate a rule specif­i­cally pro­hibit­ing the use on the com­mon el­e­ments of any un­li­censed mo­tor­ized ve­hi­cles and the use of any mo­tor­ized ve­hi­cle by a per­son un­der a spec­i­fied age, other than uses re­quired by a hand­i­capped per­son.

Once the board de­ter­mines that use of the ve­hi­cles con­tra­venes the Act, dec­la­ra­tion or rules, the board is ob­li­gated to act. If let­ters from the prop­erty man­ager or the board are not ef­fec­tive, the cor­po­ra­tion’s so­lic­i­tor should be in­structed to take the nec­es­sary en­force­ment steps on be­half of the cor­po­ra­tion. Q A few months ago, you wrote that cable TV fees paid by the con­do­minium cor­po­ra­tion un­der a bulk cable con­tract must be col­lected from unit own­ers in ac­cor­dance with their com­mon-ex­pense per­cent­ages. The cor­po­ra­tion is not en­ti­tled to charge ev­ery­one the same amount.

My board has been billing own­ers equally for 2 1⁄

2 years. I have a smaller unit with a smaller-than-av­er­age com­mon-ex­pense per­cent­age. The board is cor­rect­ing its billing sys­tem. Do I have the right to de­mand a re­fund of my over­pay­ment? A Al­though charg­ing ev­ery owner the same amount for iden­ti­cal cable ser­vice ap­pears rea­son­able, com­mon ex­penses must be shared on the ba­sis of com­mon-ex­pense con­tri­bu­tion per­cent­ages. The reader has been charged too much and is en­ti­tled to be re­im­bursed for the amounts im­prop­erly col­lected.

The proper course is for the board to re­im­burse own­ers who were over­charged and to de­mand ad­di­tional pay­ment from those who were un­der­charged. As the ad­di­tional pay­ments con­sti­tute com­mon ex­penses, there will be a lien on the unit of any­one who re­fuses to pay.

There are prob­lems in try­ing to re­solve the im­proper pay­ments. At­tempt­ing to col­lect from un­der­charged own­ers who have sold their units is un­re­al­is­tic.

Buy­ers of those units who re­ceived a sta­tus cer­tifi­cate spec­i­fy­ing the com­mon ex­penses payable for the unit can­not be re­quired to pay.

Buy­ers of units from own­ers who over­paid would not be en­ti­tled to re­ceive the amount of the over­pay­ment and it may not be pos­si­ble to lo­cate the pre­vi­ous own­ers in or­der to re­im­burse them. Q Our prop­erty man­ager ad­vises that we in­cur quite a few bank over­draft charges, since our op­er­at­ing ac­count of­ten does not have suf­fi­cient money to pay our bills. He says we use the ac­crual sys­tem of bank­ing and are not per­mit­ted to keep a bal­ance of a month or two for com­mon ex­penses in the op­er­at­ing ac­count. A re­cent Star ar­ti­cle sug­gested a cush­ion of two or three months’ ex­penses. Is the man­ager cor­rect? A It is ap­pro­pri­ate for a con­do­minium cor­po­ra­tion bud­get to pro­vide for a rea­son­able con­tin­gency fund to off­set un­ex­pected costs or cost in­creases. Lawyer Gerry Hy­man is an ex­pert in con­do­minium law and au­thor of The Con­do­minium Hand­book, pub­lished by the Cana­dian Con­do­minium In­sti­tute, avail­able for $15 plus ship­ping and han­dling (or­der at 416-491-6216). Send ques­tions to ger­ry­hy­man@bell­net.ca or fax to his at­ten­tion at 416-925-8492.

HAR­RI­SON SMITH/TORONTO STAR FILE PHOTO

Pocket bikes, such as this one owned by Yeg Baioc­chi, can be out­lawed for all com­mon ar­eas by a con­do­minium board.

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