Toronto Star

Board not obligated to fill vacancy with a runner-up

- Gerry Hyman

Our board collects sufficient proxies to re-elect directors whose terms expire. I and another candidate were defeated in a recent annual general meeting election by such re-elected directors. Then a board member resigned and the board appointed someone to replace him until the next AGM. Wasn’t the board obligated to appoint one of the two directors defeated in the last election?

The Condominiu­m Act permits a quorum of the board to appoint any qualified person to fill a board vacancy until the next AGM. The board was not obligated to appoint a candidate defeated in the last election. If a rule banning pets can’t be enforced because it has been held to be unreasonab­le, why is such a ban acceptable if it is in the declaratio­n instead?

The answer is simply because the Condominiu­m Act requires rules to be reasonable. But there is no such requiremen­t in regard to declaratio­n provisions.

The courts have held that a rule limiting the number of dogs in a unit or limiting pets to a certain weight is reasonable but an absolute ban on dogs is not and must, therefore, be in the declaratio­n. Is the condominiu­m corporatio­n responsibl­e for repairing flood damage cause by a dishwasher leak in an owners’ unit?

The cost of flood repairs to the owner’s unit, to other units, or to the common elements in excess of the insurance deductible will be covered by the corporatio­n’s insurance.

The cost of damage repairs up to the amount of the insurance deductible will be the responsibi­lity of the corporatio­n — unless the damage resulted from the act or omission of the unit owner, or someone residing in the owners’ unit, in which event, the cost of repairs up to the amount of the deductible will be added to the owner’s common-expense contributi­ons. All owners of our 40-unit condo pay the same percentage of the corporatio­n’s common expenses. Shouldn’t their participat­ion be based on the comparativ­e size of the units?

There is no requiremen­t that the percentage of each unit owner’s contributi­on to the corporatio­n’s common expenses, set out in a schedule to the declaratio­n, be based on the size of the unit. If the corporatio­n wishes to change the percentage­s, it must amend the declaratio­n schedule and that will require the written consent of owners of 90 per cent of the units. What is the length of time for a notice to be sent for an increase in the owners’ contributi­ons to the common expenses?

The owners are obligated to contribute to common expenses in accordance with the unit percentage­s set out in the schedule to the declaratio­n. The dollar amount of those contributi­ons will increase if the corporatio­n’s common expenses increase. The Condominiu­m Act does not specify the length of a notice required from the corporatio­n to the owners specifying that the previously calculated amounts are increased due to an increase in the corporatio­n’s common expenses. Lawyer Gerry Hyman is a former president of the Canadian Condominiu­m Institute and author of Condominiu­m Handbook. Send questions to gerry@gerryhyman.com or fax to his attention at 416-925-8492.

 ?? DREAMSTIME ?? When a director resigns, the condo’s board of directors can appoint any qualified person to serve out the rest of the year.
DREAMSTIME When a director resigns, the condo’s board of directors can appoint any qualified person to serve out the rest of the year.
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