Noisy, unsafe pocket bikes can be banned
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 email@example.com or fax to his attention at 416-925-8492.