Toronto Star

Smart meter retrofit in existing condos is confusing

- GERRY HYMAN SPECIAL TO THE STAR

Q: Our units are not separately metered and the declaratio­n provides that electricit­y is a common expense. The board recently entered into an agreement to separately meter the units so that the cost of unit electricit­y will no longer be a common expense. It appears that a majority of owners are opposed. The board maintains that the smart meter installati­on is mandated by the government. Can the board do this without a declaratio­n amendment or a vote of the owners? A: One might assume that this question could be answered with a simple “yes” or “no.” Unfortunat­e- ly, the matter is more complex. The Canadian Condominiu­m Institute and the Associatio­n of Condominiu­m Managers of Ontario made representa­tions to the Government of Ontario in 2006 and 2007 in regard to proposed legislatio­n that would require condos to install smart meters in all units by Dec. 31, 2010. The argument was made that the installati­on costs and monthly administra­tion fees would exceed the anticipate­d savings due to reduction in the use of electricit­y.

The legislatio­n, when passed, left the decision to the board of directors of each condominiu­m.

The initial legislatio­n was subsequent­ly rescinded and the smart meter situation is now dealt with in the current version of the Electricit­y Act, 1998, and the Energy Consumer Protection Act, 2009. Regulation­s under the latter provide that the installati­on of unit meters existing at the date the act came into force requires approval of the board. The legislatio­n does not provide that a board’s determinat­ion to install smart meters supersedes any provision in the Condominiu­m Act. Section 97 of the act states that if the estimated costs of a common element addition, alteration or improvemen­t will be greater in any month than 1 per cent of the annual budget, owners of 15 per cent of the units must be given the opportunit­y to requisitio­n an owners’ meeting to vote on the project. If the estimated cost exceeds 10 per cent of the annual budget, the project must be approved by at least 66 and two-thirds per cent of the units. Section 97 also provides, however, that those requiremen­ts are not applicable if the addition, alteration or improvemen­t to the common elements is required by statute. A smart meter project involves additions to the common elements as well as to the units. The question is whether, once the board decides to proceed, the installati­on of meters is a common element alteration required by the Energy Con- sumer Protection Act, 2009. If so, the unit owner voting provisions in Section 97 are not applicable. Some condominiu­m boards have taken that position and have proceeded as your board has done.

A determinat­ion as to whether that position is correct may require a court decision or a legislativ­e clarificat­ion. In the meantime, boards wishing to install smart meters should seek advice from their legal advisers as to the applicabil­ity of the Section 97 provisions relating to owner approval. Lawyer Gerry Hyman is an expert in condominiu­m law. Send questions to gerry@gerryhyman.com or fax to his attention at 416-925-8492. Letter volume prevents individual replies.

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