Balcony smokers likely violating legislation

I have given up sitting on my balcony because of neighbours’ second-hand smoke. I am unable to open the balcony door to get fresh air into my unit because of the smoke. I have heard that the board may be introducing a bylaw, for a vote by owners, permitting smoking on the balconies. Wouldn’t such a bylaw infringe on my rights?

Section 117 of the Condominium Act provides that no owner shall permit a condition to exist or carry on an activity in a unit or on the common elements that is likely to damage the property or cause injury to an individual.

Injury must reasonably include injury to one’s health, and secondhand cigarette smoke is a known carcinogen.

Section 117 doesn’t prohibit smoking in a unit or on the common elements but does prohibit smoking in a manner that permits the smoke to enter areas where it is likely to impact the health of other persons.

In my opinion, smoking on a balcony that results in smoke entering other balconies or units is prohibited.

The act has priority over a condominium bylaw, which cannot permit smoking that contravenes section 117 of the act. The corporation and the directors are obligated to enforce the act.

Does the board of directors have the right to carry out repairs and/or maintenance to all of the condominium units without the approval of the unit owners? What if the owners do not want to use the corporation’s contractor?

Unit repairs are the obligation of the corporation, but the declaration may make the unit owners responsible for the repairs — and virtually every declaration does.

The corporation has no right to undertake unit repairs unless an owner fails to carry out necessary repairs within a reasonable time. In that case, the corporation must carry out the repairs at the cost of the unit owner.

If the unit owner fails within a reasonable time to carry out necessary maintenance that, under the act, is the owner’s obligation, and if the failure presents a potential risk of damage to the corporation’s property or of personal injury to persons on the property, the corporation may, but is not required to, carry out the maintenance at the owner’s expense.

Otherwise, the corporation has no right to carry out unit maintenance or repairs, unless the owner of each affected unit agrees.

The corporation’s engineer recommended refurbishing the corridors. Is the board entitled to undertake a $5.1-million hallway renovation without the consent of 66-2/3 per cent of the unit owners?

If the hallway replacements are necessary, the corporation must proceed without notice to, or a vote of, the unit owners.

If the renovations are not necessary but constitute an addition, alteration or improvement to the common elements, the corporation must advise the owners of the proposed work and its estimated cost. It must also advise that the owners of at least 15 per cent of the units have the right to requisition an owners’ meeting to vote on the proposed work.

If an owners’ meeting is requisitioned, a majority vote in favour is sufficient to approve the proposed work.

A 66-2/3 per cent approval vote is only necessary if the estimated cost of the work exceeds 10 per cent of the corporation’s annual budgeted common expenses for the current fiscal year. 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.