Contents

The information in the "book" contents is based on the Condo Act of Ontario and is broken down into 15 chapters.

These chapters are listed in the menu on the left as well as below. The left-hand table of contents will always be displayed whenever you are reading a chapter: It will expand to show you where you are in the text at any given time.

Any link that has a little triangle (Triangle) next to it contains other sections within it, which can be viewed by clicking on the link.

Buying a Condo?

This chapter discusses the various issues to consider when buying a condo, whether a new condo or a resale one. It also provides some information specific to resident owners versus investors, as well as townhouse condos and condos in resort areas.

New vs. Resale Condos

New Condos

When buying a new condo from a building or development company, whether from floor plans or as it is just being completed, purchasers should make sure that the real estate lawyer carefully examines the agreement of purchase and sale, the disclosure statement, and the condo declaration.

In fact, some builders add extra charges that are not well specified in the agreement and are certainly not mentioned by the sales staff. These charges can amount to several thousands of dollars that prospective buyers have not included in the calculations of what they can afford.

The condo’s declaration should be examined to make certain that the property is as advertised.

In fact, retaining a copy of the floor plan is essential: You have to make sure that the unit you get is the one you bought and is located at the same place you wanted. Also, the declaration will allow you to know whether the development is strictly residential or if it will also contain commercial and business units (mixed-use condos). (Click here for What’s a Condo Declaration?)

Above all, the disclosure statement and the declaration may contain items that will have to be shared by all owners via their condo fees later (and for many years), thus increasing their fees. These items may not be mentioned by the sales staff and do not appear in the ads. These include some recreational facilities and guest suites that will  have to be repayed by the corporation over a period of time. Others might be equipment that is leased rather than owned by the condo. These leased items range from boilers, furnaces, energy savings equipment, special decorative items, and so on.

So, basically, prospective owners want to know if the condo owns outright everything which is in the building or on the property. This is the best situation.

In addition, purchasers should always let their lawyer know what is important to them so that the lawyer keeps this in mind while inspecting the documents.

The declaration is a thick document that is not always easy to read or understand. In addition, declarations vary from condo to condo, even in a same district, and this may create confusion for persons who are buying units in different developments. For instance, what are exclusive-use common elements in some condos are fully owned in others, such as parking areas or in-suite heating/cooling systems. (Click here for Who Is Responsible for Maintenance, Repairs & Alterations?)

The declaration of townhouse developments will indicate whether patios and backyards are exclusive-use common elements or freehold—that is, individually owned. And the same applies to garages and lockers, where available.

In some cases, even the roof, the outside walls, and the windows are individually owned: Such situations result in more maintenance responsibilities for owners in the long term. However, this should also lower condo fees.

One problem that recurs in condos being sold by agents on behalf of builders is that these agents are not always forthcoming with the full picture. Neither are the ads. For instance, they will not necessarily tell you that another building will soon rise and block your view. Others will tell you that the party room is sound proofed, or that owners of penthouses will have first pick when time comes to choosing a locker, or that your parking space will be on the first level.

None of these things may happen. It’s important to have verbal promises written in the agreement of purchase and sale in order to have legal recourse if they don’t materialize.

There is a 10-day cooling off period during which purchasers can change their mind at no cost when buying a new condo. As well, Ontario purchasers should want to ensure that the builder is governed by Tarion’s new home ownership warranty. 

Resale Condos

For resale units, the purchase agreement may be conditional upon the purchaser being satisfied with the contents of the status certificate.  This "certificate" (actually a very thick document) is very important because it also includes financial information such as fees and special assessments that may be forthcoming. Litigations that a condo may be involved in should also be mentioned--and litigations are never a good sign of things to come (Click here for Why Is a Status Certificate So Important?)

The status certificate also includes the declaration, by-laws, and rules. And, here as well, the same problem applies as described above in the section for new condos.

Lawyers should be informed of what is important to a purchaser’s lifestyle. Lawyers will then verify that rules or the declaration will not interfere. A good example would be rules prohibiting dogs when the purchaser has just acquired a pooch. The advice, then, is: don’t buy!

In Ontario, at least, prospective owners and their agent should make sure that alterations made in a unit (including on balconies and patios) by a previous owner had been approved by the board of directors. 

Some red flags which should lead prospective buyers to check on this situation are: hard wood or laminate floorings, additional A/C systems, tiles on balconies or patios that no one else has, jacuzzis, a wall that has been eliminated or added. Such alterations could create problems later if they were made without a board permission. A board could, for instance, require that tiles be removed or that the laminate floor does not have proper underpadding and is not sufficiently sound proof (after having received justified complaints).

It may be helpful to read parts of Owners’ Money Facts.

 

Condo Gardens

Factors to Consider When Buying a Condo

This section is intended to provide an overview. Additional details written by legal experts can be found elsewhere and in the Links section. Several new sections have been added as a result of concerns expressed in letters received from owners.

Location is as much a prime factor to consider when buying a condo as it is when buying a house. And the same applies for what a person or a family can afford.

A condo is big business: It is in owners' best interest to pay close attention to what is happening concerning their property. At the very least, attendance at the Annual General Meetings or AGM is a must.

Since this website has first been posted, many readers have sent letters detailing some issues that are specific to condo townhouses. These are discussed in one of the new sections below.

Physical Factors to Consider

  • proximity of suite to party room and other amenities that can create noise concerns;
  • party room hours as well as hours of other amenities (often found in the declaration);
  • hours of use for garbage chutes if unit is near one;
  • how quiet elevators are if unit is adjacent to one: An evening visit is informative in this respect;
  • street noise varies with the elevation of a suite: Some noise from distant high-ways may be more evident on higher than lower floors;
  • noise from adjacent suites. Here again, an evening visit should be informative;
  • Is the condo metered for electricity? Meters are an advantage because fees should be lower and owners don’t pay for neighbours’ extravagant use of energy!

Finally, there is the matter of condos that have two or more buildings and may also include a townhouse complex. These condos may or may not share amenities. For instance, some share a common “pod” or a clubhouse where pools, party rooms, guest suites and other amenities are located.

Each building or complex may have its own or a shared declaration and a separate board of directors or a shared board. These boards may meet occasionally in order to deal with issues pertaining to the facilities they share. Or members of each board are delegated to form a board for the purpose of administering these facilities.

Multi-building condos may or may not have the same management company. However, when they share one management company from the outset and one of the boards of directors is not satisfied with the management’s performance, the situation becomes complicated—especially when the declaration stipulates that there has to be unanimity among boards in order to change management or to have separate management companies.

Sharing

Administrative Factors to Consider

We already started looking into administrative factors above. In addition,

  • when buying a resale unit, please consider the fees and how they compare with those in similar buildings for a unit of comparative size. (Click here for Condos’ Financial Structure)
  • size of the reserve fund. (Click here for Reserve Fund)
  • be wary of condos that have had special assessments in the recent past;
  • if possible, visit the management office with a prepared (short) list of key questions that are paramount to you. However, be very nice about this because most managers have enough work without having to deal with potential buyers;
  • a visit to the management office will also provide a good indicator of the helpfulness and knowledge of the person in the office; in turn, this will give you a better idea of how well the condo may be functioning;
  • read the condo’s bulletin boards;
  • ask about energy efficiency and energy savings retrofits that might have been done or may be planned; (click here for Energy Savings Measures)
  • it's a good idea to talk to a few owners before buying a re-sale condo and ask them about the board of directors and the management or anything else that is important to a prospective buyer.

Human Factors to Consider

  • When this is a resale unit, as you ride the elevator and examine the amenities or wait in the lobby, look at the people you see: Are they loud? Polite? Are they the kind of persons you’d like to have as neighbours? 
  • If you are a retired person, do you see other persons your age?
  • If you have a family, are there other families? (Click here for Are Condos Family Friendly?)
  • A balanced age structure is always best. It is a good indicator of the quality of a condo and of its wide appeal when the entire age spectrum is represented and when families as well as singles live side by side.

A condo that caters mainly to retired persons or to young singles functions differently compared to one with a different population mix in terms of age and family composition. The choice that a prospective owner makes much depends on what he or she is looking for in terms of lifestyle.

Resident Owners versus Investors?

It is very important to try to find out what percentages of the units, in re-sale condos, have resident owners. In many of the downtown condos in Toronto, for instance, anywhere from 45 to 70% of residents are tenants.

What are the consequences for full-time resident owners when their condo has more tenants than owners?

      1. neighbours will change often

      2. there will be a lot of moving in and out, which also means a lot more wear and tear in terms of corridors

      3. because of this high rate of moving, it will be more difficult to have a feeling of community

      4. if problems arise in the condo, owners who want to do something about the situation will have great difficulty communicating with each other, getting a petition signed, or even  requisitioning a meeting, and getting the needed votes (click here for Owners' Meetings and Voting)

Non-resident owners rarely attend AGMs and rarely participate in requisitioned meetings. Only a few bother to send in proxies. This often results in a lack of quorum at a meeting or, with dishonest boards or managements, this situation constitutes a temptation for fraudulent proxies. (Click here for Issues with Boards for such examples.)

Issues Specific to Townhouses

A special section on townhouses has been added because a disproportional number of owners from townhouses are writing with serious problems--and some of these problems are specific to this type of condos.

1.  Many of the problems reside in the fact that smaller developments seem to be at a disadvantage in terms of the quality of the services they receive from management companies. This issue stems in part from the fact that companies get paid more or less according to the number of "doors," which means that they are paid less when they take on a smaller condo than a larger one--and they do less work.

2. As well, townhouse condos too often do not have a management office on site.

3. Conseqently, owners as well as board memberts have difficulty getting in touch with their manager, accessing documents, and getting information.

4. Thus, overall, townhouse owners are at greater risk of not receiving as much information from managers and boards as other condos.

5. It is, therefore, even more imperative that townhouse owners attend the AGMs and other owners' meetings.

6. Very small developments often have only 3 directors on the board, which is probably too small a number for diversity in terms of perspectives to be presented at board meetings. As well, fewer directors often mean that there is less oversight regarding finances, etc.

On the positive side, in reasonably stable and affluent areas, townhouses have the advantage of having a greater proportion of owners who live on site. We know that resident owners have a greater vested interest in the well-being of their small community and in the soundness of its financial stability. It is then easier for such owners, when a serious issue arises, to organize requisitioned meetings and get the required number of votes necessary to pass a motion.

Issues Specific to Resort Condos

Only a minority of owners are full-time residents in resort condos. Therefore, some of the issues raised in the section above on Resident Owners versus Investors apply particulary well here. These are difficulties in getting owners together when a problem arises, when a requisitoned meeting is necessary, and in getting a quorum for AGMs.

In addition, resort condos often have shared facilities with a particular board structure that may limit the power and duties of the individual boards in the various condos that own these facilities together.

For instance, in some resorts, there may be 12 condos of about 20 to 50 units each, in the form of low-rise buildings or townhouses. Each condo has its own board of directors, budget, declaration, and even rules. But they all share one set of facilities, such as pools, other recreational facilities, paths, boat slips, etc. These shared facilities in turn have a board of directors which is constituted of one representative from each of the individual condos. This means that boards of shared facilities can be very large--probably too large.

Another issue resides in that, for instance, the shared facilities may have 8 pools that are spread throughout various condos (rather than in one place, as is generally the case in cities, such as in a pod). The board for these shared facilities then determines the pool hours, including hours for adults only. This means that residents in condo X may have a pool in front of them but their children may not be able to go in this particular pool at certain hours; rather, the children have to walk to another condo and use another pool. Hence, parents cannot supervise their children, as they had expected when they bought, from their front yard.

Or, to give another example, walking and biking paths may wind  throughout the shared property, often too close to some of the buildings belonging to one condo, at the cost of constant noise and traffic for these owners. Even if the path has an alternate, other residents still prefer this one. This particular condo's board can be helpless because, in order to make rules regarding this path, it depends on the board of the shared facilities and this board is more powerful.

Hence, in many resort condos with shared facilities, the individual boards and the individual condos do not have as much power over their environment for the well-being of their own residents as is the case in condos that do not have such a structure of shared facilities.

Another issue with condos that have shared facilities is management. Generally, the management company is the same for all condos and the shared facilities. In order to change the management, some condos require in their declaration that over 50% agree to a change while, in other condos, 75% are needed to agree before a change of management company can occur.

Other condos with shared facilities allow each individual condo to make its own decisions regarding its own management company. But, at this stage, other issues arise and they are the same as those mentioned in a previous section on townhouses: Small condos often cannot afford as much management care as a larger condo. Second, it may not have an office in which the manager can come on site. And, finally, the manager might have difficulties with the main management company in the shared facilities and the other condos in the development.

Resort condos with a majority of owners who are seasonal or week-enders experience many problems when such part-time owners constitute the board. Indeed, because they are largely absent, such directors are often unaware of many of the problems experienced or observed by full-time resident owners, do not have as much time to devote to their duties, and may not be able to attend board meetings, or even shared facilities board meetings. In these situations, managers may do as they please, with no board oversight.

Such condos might want to pass a by-law to the effect that boards should include at least one of three or two of five directors who live primarily on site. Resident owners are better able to serve the best interest of the corporation, to supervise management, and to attend to problems.

Condos' Financial Structure

The cornerstones of a condo’s financial health are the annual budget for regular expenditures and, in many provinces, the reserve fund for replacements as well as large non-routine repair expenditures in the future. Other key issues are also discussed in the sections below. It is important to point out here that too few owners do read the yearly budget and too few dare ask questions about it of the manager and or board at the AGM.

Budget

Each fiscal year, boards of directors approve a budget that is prepared based on expected revenues and expenditures for the next 12 months. 

This budget is sent to all owners at least two weeks before the beginning of a fiscal year.

Budgets are fairly standard and are usually prepared for boards by a condo's management company. How much input boards of directors have varies from condo to condo. Generally, presidents and/or treasurers are more involved in this process than other board members. However, the budget has to be voted upon by the entire board.

The budget is a board’s responsibility. Owners cannot vote on it.

However, if the budget is insufficient or wasteful, owners can requisition a meeting to discuss it; but they can’t force boards to comply with their wishes. Owners can, however, vote to replace their board at a requisitioned meeting designed for this purpose. (Click here for Requisitioned Meetings)

Items found in a budget are: sources of income, general expenditures, and provision for reserves or other funds.

Sources of income include:

  • condo fees, rentals, interest, surplus from previous years

General expenditures include:

  • utilities, administrative expenditures, regular contracts (i.e., landscaping, carpet cleaning), repairs and maintenance (i.e., plumbing)

Boards have the right to issue a revised budget at any point during the year when the reserve fund is deficient or unexpected expenditures occur. At that time, fees can be raised or a special assessment can be levied. (For special assessments, cllick here for Owners' Money Facts.)

What to Look for in a Budget

There are 5 important areas that owners want to focus on when receiving the annual budget. These are: level of increase or decrease in fees; history of fees in the condo over recent years; size of the reserve fund and yearly contributions to this fund; existence and size of a contingency fund and/or surplus from previous years.

Fees and History of Fees in Recent Years

Understandably, owners are relieved when fees remain the same and do not increase. Stability in fees is a good thing provided it is not to the detriment of the future fiscal stability of a condo.

Owners are also happy when increases are small, that is between 1 to 3%.

But stability or small increases in fees are desirable only when this is sufficient to compensate for inflation and when there is a sound reserve found and a small to moderate surplus for unexpected repairs. As well, a condo that has just completed some serious energy savings retrofits can afford stability for a few years because large savings are anticipated.

In contrast, much higher increases are indicated when:

  • the level of services is falling or there have been cuts in necessary services (provided, of course, that this does not stem from the fact that the staff is lazy and incompetent);
  • repairs are not being carried out (because there is no money);
  • the reserve fund is inadequate.

If these situations are occurring, then, a low increase in fees or no increase at all is a recipe for disaster. A condo may deteriorate, its real estate value will diminish, and owners’ satisfaction will rapidly plummet.

How do such detrimental situations occur? Sometimes they are caused by the fact that owners have refused increases in fees in the past and have defeated boards who tried to bring some fiscal sense to the situation. In other cases, boards were not knowledgeable or they did not want to displease owners because they wanted to be re-elected. Or, yet, boards squandered funds--and this happens more often than believed.

However, too many of the letters sent by owners describe fees that are going up yearly by 5 to 25% while boards and management carry on with unnecessary "preventive" maintenance, premature "repairs," constant upgrades of common elements, and by adding staff to compensate for the fact that the current staff is plain lazy, or, yet, give free reign to various contractors' suggestions. For many boards, spending money is a sign that one is doing a good job: Yet, it is easier to spend money than to find creative solutions to problems! Click here for Wasted Money.

Size of the Reserve Fund and Surplus

Please refer to the sections that follow, or click here to go directly to Reserve Fund and Surplus.

Size of the Contingency Fund or Surplus

Boards generally like to have a small cushion for unexpected expenditures or small improvements. With a surplus, a contingency fund is not necessary. But when there is no surplus, then, it is a good idea when a budget is around $1 million to have at least $20,000 in the contingency fund. Basically, a contingency fund is a surplus!

Therefore, when a budget has no increase in fees or only a very small increase, but there is a contingency fund or a reasonable surplus, then no one should be concerned because there is money “in the bank” with which to carry out unexpected repairs. But a small increase coupled with no surplus or no contingency fund is a red flag—unless a surplus is expected because of a settlement with the builder, an energy savings retrofit, or large sums of monies owed by a utilities company.

On the other side of the equation, very large contingency funds or surpluses are often accumulated by condos. This is wrong because this is owners' money that is uselessly held "captive" in a bank account. Such monies should rightly be in owners' pockets.

As well, large contingency funds often give managers and boards too much latitude in spending because there seems to be a lot of money around. And, if ever a board or a manager is dishonest, this is where monies could disappear.

Boards should not raise fees when they have large contingency funds, especially when they also have a surplus. Rather, they should use these funds to stabilize fees.

Boards should plan for expenditures within the regular budget, rather than rely on contingency funds--otherwise, lack of fiscal discipline will prevail and "impulsive" spending will occur. Some boards feel good about spending money--while, in reality, they may be doing so uselessly. This is owners' money! Budgets make boards more accountable to owners than do large contingency funds.

Contingency funds, unlike the reserve fund and the regular operating funds for the daily budget, are not mandated by the Condo Act of Ontario.

Reserve Fund

What’s the Reserve Fund For?

It can only be used for replacement and non-routine repairs of common elements and assets of the condo:

For instance, replacement of roof, windows, boiler, carpets, and security system.

Other examples are non-routine repairs to the chiller, the swimming pool, and the parking areas.

A reserve fund is like a savings account or insurance policy for special expenditures that may come up in the future. In some provinces, condos have to have a reserve fund in a bank account that is separate from the general budget account. All monies in this account have to be placed in easily accessible and safe investments, such as GICs or government bonds, and not in the stock market or any other risky venture.

In Ontario, a condo has to carry out a Reserve Fund Study "periodically,"  as per Section 94 of the Act.  This generally has been interpreted to mean "every three years." However, such studies can be expensive, especially for small condos that have tiny budgets. A good rule is to do an initial comprehensive reserve fund study and, then, 3 years later, do an update--which would be less expensive.

This study has to be undertaken by experts with a special designation. They may be members of the Appraisal Institute of Canada or other similar accredited groups such as the Ontario Association of Certified Engineers. The purpose of the study is to examine all the systems (i.e., heating) and other physical aspects (garage, balconies, windows) and give a reasonable expectation as to when they will need to be replaced or have non-routine repairs and how much this will cost at that projected time in the future. 

The engineers present the results of this study to the board along with a fundraising plan. For instance, they may suggest that 10% of the condo fees go into the fund with an increase of 1% each year for the next ten years.

The directors have 120 days during which to decide how to implement this plan or put forth another reasonable plan. After this, the board has 15 days to send to owners an overview of the reserve fund study and how they intend on implementing it. The board then has another 30 days to begin implementing the plan. Generally, this study and plan are sent to owners at the same time as the budget because implementation of the study may affect the budget.

So, all owners receive a summary of the reserve fund study along with an explanation of how it will be put in place. This is then indicated in the status certificate. (Click here for Why Is a Status Certificate So Important?)

Any person planning on buying a condo should consult the reserve fund study and schedule included in the status certificate. Reserve funds that are insufficient could result in unexpected raises in fees or in special assessments in the near future. (Click here for special assessments in Owners' Money Facts)

Directors who fail to maintain an adequate reserve fund with increased contributions or special assessments could be sued by owners in the future. Indeed, owners may see the value of their property decrease or may fail to sell their units because of a deficient reserve fund. The directors’ liability insurance may not cover them if due diligence has not been done. 

Problems with the Reserve Fund

  • The Ontario Condo Act specifies that a reserve fund can be used only for replacement and major repairs but notmaintenance or regular repairs that result from normal wear and tear. These have to be covered in the regular budget.

    Take window frames: The normal wear and tear of the caulking requires that it be redone or reinforced periodically. This may be expensive maintenance, especially in high rises. But this expensive maintenance has to be paid out of the regular budget. In order to be covered by the reserve fund, such maintenance repairs have to turn into a creative interpretation of what “major repairs” can mean. Or, yet, condos may not carry out this maintenance and, as a result, window replacement or major repairs to the frames may arrive much sooner than anticipated.

  • Some older condos, built before 2001, have never carried a reserve fund study or have done one only recently. As a result, the fund may be deficient and special assessments may be levied.

Man Holding Bag of Money

  • Construction costs, price of new windows or even boilers can rise much more than predicted in the reserve fund study. It is difficult to anticipate how much it will cost to replace windows in 20 years.
  • Building standards have deteriorated so that what used to last 10-15 years may now last 5-8 years only. Examples: underground garages develop cracks much earlier than expected (and colder winters do not help this situation). Garage paving may wear out after only 5-8 years while the reserve fund study may have predicted 15 years. Therefore, reserve funds may have to be tapped earlier than predicted.

Upgrades can’t be paid out of the reserve fund. For instance, a broken tile floor cannot be replaced by an expensive marble one. If it is, the difference in cost between a tile and the expensive marble has to be paid out of the regular budget. 

However, within the purview of Ontario’s Energy Conservation Leadership Act, a good case could be made that old windows that are falling apart should be replaced with energy efficient ones, even if this is a form of upgrade.

Surplus, Deficits, and Loans

Surplus (and Contingency Fund)

A condo has a surplus when general revenues exceed general expenditures at the end of a fiscal year. (This does not include the reserve fund which, by definition, acts like a savings account for the future.)

Some condos with huge surpluses and/or contingency funds keep raising owners’ fees. It’s neither a fair nor a good decision. After all, the surplus has been paid by owners. Very large surpluses could be taxed as profits (condo corporations are not generally taxed because they are non-profit corporations).

What is considered a large surplus and/or contingency fund?

A condo with a budget of $10 million and a $150,000 surplus is in a prudent situation. But a condo with a $1 million budget and a $150,000 surplus and/or contingency fund has to use it. A small part of this surplus can be retained to cover unexpected expenditures in the budget. The remainder should be used to either reduce owners’ fees or stabilize them. Finally, it can be used to top up the reserve fund if it is deemed insufficient. However, once monies go into that fund, they can’t be retrieved for anything else.

Deficits

Condos cannot function in a deficit situation. When expenditures are larger than revenues, boards have to use the surplus or contingency fund or increase fees in order to cover this deficit.

Deficits should be erased within one year after they occur. If the usual methods are not sufficient, then special assessments or loans may be necessary. Owners should be very concerned when their condo operates in a deficit mode and certain expenditures that could be postponed continue.

Loans (and Loan By-laws)

It is not a good thing when a condo corporation has to take a loan.

A by-law has to be passed for this purpose, which means that owners can vote against it. (Click here for Owners’ Meetings and Voting) A loan by-law cannot be open-ended: It should not allow the board to borrow at any other time. Rather, a loan by-law specifies what the loan is for, the amount, and the time period. If, in the future, more borrowing is necessary, another by-law has to be passed.

Both the budget and the status certificate should reflect a loan by-law and the loan itself. There may be exceptions but, generally, loans devalue a property because prospective buyers will not want to invest in a condo that has debts.

But a loan may be necessary when, say, the roof leaks and needs to be replaced and the reserve fund is empty. This loan can be repaid via higher fees or a series of special assessments. (For information on special assessments, click here for Owners' Money Facts)

Misuse of Funds, Kickbacks and Fraud

In this section, we look at two situations that frequently occur in condos and that are hushed: no one wants to talk about them!

These are misuse of money and kickbacks and, somewhat less common, but nonetheless occurring far more often than is openly discussed: fraud and outright theft.

All three of these situations probably cost tens of millions of dollars each year to Ontario condo owners.

Misuse of Funds

Misuse of funds or waste of condo moneys by management companies and boards of directors is a frequent occurrence and too often goes unnoticed even by well-informed owners.

Condo monies are wasted when:

  • repairs are done by an expensive contractor when an equally competent one would carry them out for less; this generally occurs when jobs are not tendered or when managers and/or boards have a personal preference for a particular contractor (Click here for letters about Condo Fraud, Kickbacks, and Conflicts of Interest);
  • alterations are made (such as clean outs in units for the kitchen stacks) to solve a problem (such as back ups in sinks), before other inexpensive solutions have been tried, such as educating residents and asking their cooperation; or even before testing on a small number of units to see if these alterations will bring relief to the problem in question;
  • expensive equipment is installed but is not used; one can think here of camera systems as well as building automation system (BAS);
  • constant upgrading of common areas are carried out just to please contractors, managers, or boards;
  • contractors are hired to do work that an employee, such as a superintendent, should be doing as part of his or her daily or weekly routine;
  • employees or managers do not put the time they are paid for;
  • the corporation law firm is used to write routine correspondence because neither the president nor the manager write well or can be bothered to do so;
  • repairs are carried out in an improper sequence so that the first set of repairs have to be done again after the second set is completed;
  • regular contractors fail to use certain procedures to diagnose a fairly routine mechanical problem and, instead, suggest that the board hire an expensive consultant;
  • regular contractors are asked to diagnose a technical problem and do the repairs themselves; often, it is preferable to hire an independent contractor or engineer to diagnose serious problems to avoid potential conflict of interest;
  • boards and managers treat themselves to expensive meals during board meetings;
  • utilities, such as electricity or water, are allowed to be on when unnecessary or to be overused;
  • expensive parties are given which are not paid for by the individuals who attend them;
  • managers or boards mail letters to residents that could easily be posted on the available bulletin boards in a building.

What can an owner do?

As evidences in the letters received, there is unfortunately not much that owners can do because, under the current Condo Act, they are not adequately protected. Many owners have tried to object but have subsequently been threatened by the manager, board, and even the condo lawyer.

Owners can:

  • keep a diary of occurrences they detect;
  • see if they can find a contractor who might give them a quote for a job that was done and seems unduly expensive. (Again, this presumes that owners have had access to documents...);
  • requisition a meeting to discuss the issues, keeping in mind that discussions are not binding;
  • requisition a meeting to remove the wasteful board. This may be the only solution if the misuse of funds is serious. But this also presumes that other more honest board members can be found.  And this also presumes that requisitioning a meeting will be successful and will not, instead, result in owners who participate being harassed and threatened... and even receive unwarranted legal letters. (Click here for Requisitioned Meetings)

Kickbacks and Fraud

Since the inception of this website July 2009 and up to the end of August 2012, 128 letters (or 8% of all letters) have been received containing credible evidence that kickbacks and/or fraud are occurring in particular condos. Only six of these cases were under investigation by the police or a court ("forensic audits") and, as such, the writers could not divulge the evidence.

In condos, kickbacks occur when a manager, a management company, or a board member (generally the president) receive monies, special services for free, or large gifts from various contractors in return for contracts, for allowing higher invoices, or even work that is unnecessary. Eventually, these kickbacks are paid by owners via their fees as these contractors recoup their kickbacks by overcharging on their invoices to the condo.

Fraud takes the form of managers, board members, or contractors using corporation money for themselves. Fraud can be small or large.

In Canada, both kickbacks and fraud are illegal.

Examples of fraud:

  • A manager has work done on her house or a president has his or her suite improved while the contractor is doing other work in the building: The contractor charges the corporation instead of the president. This can be difficult to detect.
  • Cheques are forged by a board member or manager for their own benefit.
  • Cheques are paid to a fictive contractor for services that have never been rendered..
  • Repairs to a condo are not carried out: The monies disappear from the books and go to a manager or a board member.
  • Monies are transferred little by little to someone else’s account or pocket book. This is easily done with petty cash or funds intended for gifts to staff or parties.
  • A manager or a treasurer volunteers to buy furniture for the lobby and party room; while so doing, he buys items for himself.
  • Invoices are padded and include services not rendered or, yet, "repairs" are carried out that were not needed.
  • Board members pay themselves a salary, even though condo owners have not voted a by-law that would allow such payments--and even sign their own cheques!

In Canada, none of these actions are legal but they are very difficult to prove, especially when no tendering process occurs or when it is flawed. For instance, quotes can be solicited from other contractors who are known to be very expensive. This way, the elected contractor’s quote appears reasonable. Please consult Condo Fraud, Kickbacks, and Conflicts of Interest in Readers Respond for various sad examples.

What can owners do?

Easier said than done because, in such situations, board and managers refuse owners’ requests to examine relevant records. Or, yet, records do not exist.

And the Condo Act in Ontario, as it has been interpreted in at least one Court case, has not helped matters at all. Indeed, it has been concluded that owners who even go so far as to successfully obtain condo documents (as the Act allows them to do), cannot use these documents to question board members or even to conduct their own “investigation.” This in effect deprives owners of many of their rights.

Owners who suspect that kickbacks or fraud are occurring should first of all try to obtain documents and keep quiet about it—then approach their local police station... and hope that they will be heard. One owner reported that he was told at his police station, “The police don’t do condos.” Of course, this is not true. Four other owners, including a president, were simply rebuffed and shrugged off at their own police station. If contacting the local police station fails, perhaps contacting the Office of the Independent Police Review Director might be helpful. In all circumstances, owners should keep a record of their contacts and activities and always retain a copy of whatever records they pass along to investigators.

So what about the corporation’s auditor? It could be advanced that, in some cases, he or she may be able to detect fraud. Even though elected by owners at the AGM, auditors are often loath to get involved in such matters for which they may themselves only have suspicions. This is particularly so when the culprit might be a management company: Management companies and auditors have many faceted relationships. One auditor told an owner that it was not their mandate to do “forensic” audits.

And what about the corporation’s lawyer? In theory, such a lawyer should listen and many do. However, it is also an unwritten “rule” that solicitors do not talk with owners but only with the board and manager—and generally only with the president who represents the board. In many cases where owners tried to approach the corporation’s solicitor, they were threatened with legal action. (Click here for Issues with Lawyers)

Kickbacks and fraud are tricky issues because an owner could be sued or threatened to be sued for defamation by the board or a manager were he or she to make such allegations. Whistle blowers are not protected under the Condominium Act of Ontario. As well, kickbacks and fraud are difficult to substantiate, which is no excuse to do nothing about it. Unfortunately, the onus resides on owners who are already very powerless and helpless--even boards can be helpless. This is one more reason why condos need more protection and a stronger Condo Act.

If owners have substantial evidence, particularly through the financial statements, that theft or fraud or kickbacks are occurring, they should, with the help of a lawyer, get a court order under Section 134 of the Condo Act. Litigations, if necessary, could begin after--but this is costly and successful owners may not recoup their monies, under current legislation.

In addition to these problems, one has to consider theft of food, tools, paint, and other items on the part of various condo staff and contractors. It is impossible to tell how often any of this occurs.

Financial Statements, Cheques, and Owners' Permission

Financial Statements

Generally, boards of directors obtain monthly financial statements from their management company or an accounting firm. These statements present what has been budgeted for each category (i.e., electricity) for each month and what was actually spent that month. A list of all cheques cut out for each category is attached to the statement.

A board who is accountable and has a policy of transparency may want to post a monthly financial statement on a bulletin board accessible to residents (rather than guests).

Cheques

Have you ever wondered who signs cheques for expenditures in your condo corporation? Two signatures are required. Often, one is the designated person in the management company and the other is one or two designated board members, usually the treasurer and the president. Or both signatures come from the board of directors.

Owners' Permission

There is a general rule in the Ontario Condo Act that owners’ permission is required when a projected expenditure for an upgrade, an improvement, an addition, or a change is more than 10% of the current annual budget. Or, in any month, if the expenditure is more than either $1,000 or 1% of the budget. Owners can requisition a meeting to vote it down, even if it could be covered by an existing surplus. (Click here for Requisitioned Meetings)

However, expenditures that are necessary to maintain and repair the property are a board’s duty, no matter the cost. No permission is required and even a notification to owners is not legally necessary. It is nevertheless advisable and respectful to inform owners and engage them in the challenges faced.

Technical or Performance Audits

Within 10 months after a condo’s registration, the new condo board has to hire an appropriate engineering firm and carry an audit of the condition of the building(s) for the purpose of the New Home Warranty Program (or Tarion in Ontario).

During this audit, all a building’s systems and structural components covered by the warranty act are inspected. The board or manager may point toward areas that need closer scrutiny.

The resulting report will list deficiencies—just as builders do for suite owners after they take possession of their unit. The builder then proceeds to do repairs and adjustments. However, unavoidably, the builder bargains on some issues (the most expensive ones) or refuses to go along on other issues and appeals to the Tarion program. Boards can also appeal and a mediation process may take place.

Therefore, at the end, some deficiencies may remain. Boards may bargain with builders and eventually an agreement is reached. In some cases, in lieu of remedying some deficiencies, builders may pay condos an agreed upon sum of money with which condos will themselves carry out adjustments. This entire process may take years and some corporations end up suing the builder.

Is suing the builder a good idea? Let’s first say that no one should have to sue builders because we should all be better protected by Tarion and the Condo Act. Second, these lawsuits rarely end in court and, when they do, it can be several years after their initiation, perhaps at a cost of over $60,000 or more. Out of court settlements are rarely totally satisfactory and legal fees may remain. All of this represents monies that could have been better spent for the condo itself. Some lawsuits are, however, necessary and the condo’s law firm will advise accordingly.

Energy Saving Measures

Both federal and provincial governments currently offer grants for condos that reduce their energy consumption by doing retrofits or adding measures such as solar power. Cities may also have their own incentive programs.

Energy savings measures are beneficial to the environment and are also good business because a great deal of money can be saved.

What kinds of retrofits are worth it? Measures that save a lot of energy and, thus, have a short pay-back period. “Short” generally means less than 8 years, and, usually, pay-back occurs within 2 to 3 years. That is, the monies spent on the retrofit will have been recovered in 2 to 3 years.

Easy and Inexpensive Measures

  1. Encourage residents to turn to CFLs or compact fluorescent lighting. CFLs use 75% less energy than conventional bulbs and last much longer.

    Compact Fluorescent Bulb

    CFLs currently contain a bit more mercury than conventional bulbs and should be safely handled when they break. Pregnant and breast-feeding women as well as small children should not handle them. They are otherwise safe.

    What to do if a CFL breaks? Open a window and leave the room for about 15 minutes. Then, wearing gloves and with a paper towel, scoop up the bits and throw them in a bag. On a carpet, use sticky tape to pick up the bits. Vacuum and remove the bag. Double bag and place in an outdoor thrash bin or bring downstairs to the superintendent. Wash hands thoroughly.

    Very shortly, probably within 6 years, it is expected that LEDs, or light-emission diode bulbs, will replace CFLs, because these bulbs burn much less energy than CFLs and last even longer. Currently, LEDs do not produce sufficient light for an entire room and are still very expensive.

  2. Educate residents about the merits of energy conservation with the help of notices posted on a regular basis.
    • Emphasize turning off lights, TV, and computers when not in use;
    • microwaving rather than using a conventional oven;
    • doing the dishes and laundry only with a full load;
    • using a rack to dry clothes;
    • not leaving the frig door open too long.
  3. The double message conveyed in these notices should be: Energy conservation is good for the environment and saves money. (People are receptive to this message...)

  4. Also educate the staff about the merits of energy conservation so that lights are turned off in the electrical, mechanical, and garbage rooms upon leaving.
  5. Completely turn off one or two elevators (when a building has at least three) from midnight to 6 am.
  6. If all the garbage rooms off corridors are along the same electrical line, install a simple timer to turn lights off from 10 pm to 8 am—or according to hours of use.
  7. Educate residents and employees to use less water. Water is quickly becoming an ever more expensive item on budgets. Occasionally, place notices asking residents not to leave water running when they rinse dishes, wash their teeth and hands.
  8. Dripping Tap

  9. In the warm season, raise corridors’ cooling system to close to 25c. During cold months, lower heating to about 18c. Corridors do not need to be as cool or as warm as suites.
  10. The pool and/or whirlpool heating can be shut down for a few hours at night after a thermo cover has been installed to retain heat.
  11. Depending on the type of ventilation system in corridors of a mid- to high-rise building, some or all ventilation fans that force air into corridors could be shut down for the night or part of the night. But this can only take place if a timer can be installed or if a building automation system exists.

    As well, this can’t be done if, without pressurization, the end result is that no air is flowing in naturally from these vents themselves and other areas.

    One easy way of testing for natural air flow when forced air is shut down is to put a hand around a suite’s door; if air is flowing naturally, one can feel it.

    If this initiative is feasible, it can save several thousand dollars each month both in electricity in all seasons and gas in winter--depending on the size of the building and the number of forced air units, as well as the condition of the motors.

    But, in winter, when there is a spell of extremely cold nights, especially on windy days, it is preferable to let fans work so that the frigid weather does not stall motors when they restart in the morning. In other words, managers have to be vigilant and follow weather forecasts.

  12. Where provincial legislation gives precedence over the Act, installing individual smart meters in each condo that does not have them can result in substantial savings. With this legislation, no amendment to the declaration of a condo is necessary—no vote from owners required.

    Individual meters generally result in a 10 to 20% reduction in electricity consumed by residents in their suites: Residents become responsible for their consumption and no longer leave lights or the TV on when they leave. They use ovens, dishwashers, and laundry equipment more wisely.

    Usually, electricity consumed in suites for all appliances and lights constitutes about 25 to 33% of the electricity used in the building. Therefore, smart individual meters save 25 to 33% of the costs of electricity for the corporation's budget.

    After smart meters are installed, owners’ fees are readjusted downwardly on a pro-rated basis. This readjustment may take place over a period of two years.

  13. Smart Meter

  14. Have all toilets in suites tested for flange leakage—this is a simple procedure carried out by the superintendent or a plumber who throws a colouring pill in the water tank. Requiring owners with leaky valves to repair or replace them is the next step, otherwise a great deal of water will be wasted.

Measures Requiring Some Funds

  1. Changing lead boilers for hot water and heating to highly efficient ones.
  2. Retrofitting all lights in garages, corridors, and common elements.
  3. Installing thermo covers for pool and whirlpool.

    Pool Thermo Cover

    The cover can be rolled manually (not difficult and less expensive) or it can be automated (more expensive).

  4. If the garage ventilation fans are on at all times, putting them on carbon monoxide detectors can lower electricity costs substantially. This initiative will also prolong the life of the motors.
  5. Adding variable speed drives to the fans that bring air in the building. This change may not be useful in saving energy and money in buildings where air flow is already limited.
  6. A building automation system (BAS) may help the implementation of some of the measures suggested above. This is a software system installed in the management or superintendent’s office.

    But such a system also carries disadvantages, mainly in terms of initial price and costs associated with training managers or superintendents. In residential condos, these automated systems are often underutilized by managers, especially when there is a high turnover rate. As a result, the savings that could be obtained are not forthcoming.

    These systems cost anywhere from $80,000 and upward—substantial sums, especially when they are not properly used afterwards. They can be expensive to maintain and particularly to upgrade later on. As well, some condos keep upgrading their system, each time requiring training for managers and, often, these upgrades are not used.

  7. When changing windows that break, have them replaced by energy efficient ones.
  8. Whenever feasible, pool water should be heated by solar energy. Chemicals, or salt water, which is corrosive for pipes, can be replaced by a UV sanitizing system. (Consult information contained in the Readers Respond pages: Click here for Useful Tips for Buildings.)
  9. Adding solar energy in general, although this item is still expensive and the pay-back may still be quite long, may be considered. Many governments provide incentives, including Ottawa’s Ministry of Natural Resources.

Solar Power

Owners' Money Facts

This section begins with maintenance fees and special assessments that are the two main sources of expenditures for condo owners--although special assessments are last resorts. Other issues follow in subsequent sections.

Maintenance Fees

Maintenance fees, or condo fees, cover a condo’s expenditures and reserve fund. Fees are akin to a rent for services received and a savings account for future repairs.

Fees paid by suite or unit owners are originally predetermined by builders or developers and appear in a schedule of the declaration--at least, in Ontario. Each unit, generally based on its size, parking space and locker, is allocated a percentage of the common expenses. All percentages in the declaration’s schedule have to add to 100%. (Click here for What’s a Condo Declaration?)

A budget is drawn describing and adding up all expenditures that the condo corporation will incur in its first year. Each suite is then assessed its annual proportion of these expenditures. For example, a condo will spend $1M in its first year. A small suite that has been assessed as having a 0.12 share will have an annual fee of $2,000 or $166.67 a month. So, each month, this suite will pay $166.67 to the corporation, via cheques, post-dated cheques, and preferably pre-authorized payments.

Fees will remain the same the following year if the budget does not change. If it increases by 2%, all owners’ fees will increase by 2%.

Fees are paid at the beginning of each month. In Ontario, when an owner has failed to pay his or her fees, it is advisable that the management contact that person by phone, if possible, or by letter, within the month. But, after 2 months of unpaid fees, a letter of intent to lien is sent, and if the owner does not pay up immediately, a lien is registered to the unit before the end of the 3rd month.

Owners should never stop paying their fees unless they are in financial difficulties: But they have to discuss this with the manager--and have in writing any concession made!

Under no circumstances should owners stop paying their fees even if they are not receiving services to which they are entitled--otherwise they risk having a lien placed against their unit. Liens have to be avoided at all times: They are costly.

Several letters have been received from owners whose fees increased substantially one year or two after they moved into their new condo. This is extremely common because, in their advertisements, developers nearly always advertise fees that are lower than they will be. Low fees are a good selling point!

But the end result is that the first real board is then forced to increase fees in order to meet budgetary requirements. Owners beware!

Special Assessments

Now, here is a dreaded word and for good reasons.

A special assessment is an additional payment or a levy that a condo board has to impose when unexpected shortfalls or unexpected expenditures occur in the budget, or when an expensive system has to be replaced (i.e., a boiler) and there is not enough money in the reserve fund to cover for it. (Click here for Reserve Fund)

Special assessments are like a fee and are proportional to the % of common expenses each unit has, as per the declaration. Therefore, a smaller suite's special assessment will be lower than the one paid by a larger suite.

In Ontario, special assessments often occur in condos that were built before 2001 when reserve fund studies were not mandated by the previous Condo Act. As a result, developers and boards failed to build up sufficient reserve funds for future replacements and major repairs.

It is the duty of a board to impose a special assessment when necessary and owners have to comply, as is the case for fees.  Owners cannot vote on whether or not to levy a special assessment.

However, a board who has failed to have a reserve fund study or has caused the situation that led to the assessment can be voted out by owners at a requisitioned meeting or even sued for lack of due diligence. But this is easier said than done! 

If owners believe that the rationale for the special assessment is not well explained or documented, they can requisition a meeting to force the board to discuss the issue. But the board does not have to stop the special assessment. Yet, it would be a disrespectful board who would refuse to clarify the situation.

If, after the meeting, or if the board refuses the requisitioned meeting, and owners still believe that the special assessment is unwarranted (this happens: Click on Horror Stories About Special Assessments), then owners can requisition a meeting for the purpose of replacing the board. (Please read the various issues pertaining to  Requisitioned Meetings)  Or owners can have recourse to a lawyer in order to get a court order to stop the special assessement pending a review, by using Section 134 of the Condominium Act of Ontario.

Special assessments can’t be levied if there is a large surplus or if the reserve fund is sufficient to cover the replacement. However, if the replacement or large repairs deplete the reserve fund, then the board has to levy an assessment to bring the reserve fund up to date. Or the board may choose to raise fees in order to top off the reserve fund.

Special assessments can’t be levied for repairs that are merely cosmetic to embellish a condo or to accommodate someone’s taste for luxury!

Special assessments require careful consideration by boards and adequate communication with owners, including letters, advance notices, and even an information meeting to explain the necessity as well as what would happen without this assessment.

There are various ways of levying an assessment: It can be added to the fees for an X number of months (less painful approach), or paid in 2 to 4 instalments, or in one lump sum payment (most painful).

Since this webite had been posted, many owners have sent letters describing abuses in the ways in which special assessments occur. Please click here to view these letters: Horror Stories About Special Assessments.

As soon as special assessments are contemplated, they have to be noted in status certificates so that potential buyers are made aware of this forthcoming expenditure.

Liens

Owners should avoid liens because they are costly

 Person with Dollar Sign Another Person with Dollar Sign

What is a lien? A lien is a legal document sent to owners who have failed to pay what they owe the corporation for arrears in common elements. What can this include?

  • First, arrears in monthly condo fees;
  • second, when an owner fails, after due notice, to carry out necessary maintenance and repairs that are owners’ responsibility, the corporation has to step in and do this maintenance and repairs in order to prevent deterioration of corporation assets, or injury, or danger of damage to other units. The resulting sum of money, if not paid, constitutes an arrear in common elements, provided the owner was notified and given reasonable time to attend to the issue;
  • third, insurance deductibles as a result of damage to common elements or another unit may also fall in this category, depending on by-laws or declaration. (Click here for Standard Unit By-Law; also click here for Insurance)
  • fourth, certain legal fees. But see below.

The Proper Procedure for Liens

Here is an example of how the most common type of lien is processed in Ontario:

Owners Tomtoms have not paid their condo fee for the month of August—all cheques are due on the 1st of the month. A few days later, the manager phones the Tomtoms to remind them. Still, they do not pay the September month either so, on September 10, the manager sends them a reminder note to their address of residence. Nothing happens.

By September 21, the management company sends them a letter advising that a lien could be registered against their suite and what the financial consequences will be. Still, the Tomtoms do not pay for October either. That’s 3 months of unpaid condo fees.

At that point, the condo lawyer has to issue a Notice of Lien—and there are legal fees attached to this notice. The lien is registered 10 days later if the owners have not yet complied. Had the lawyer or the management waited longer, the lien would not cover the first month that was skipped. In other words, a lien has to be registered before the period of 3 months expires if the condo is to recover all arrears.

Only three months of arrears are covered by a registered lien in Ontario. This is the reason why management companies have to be vigilant concerning the timing of arrears.

Now, let’s assume that the Tomtoms pay after the lien has been registered. What do they have to pay?

  • The arrears in common element fees
  • Interest on the arrears
  • Legal fees

Let’s also assume that three months later, the Tomtoms begin defaulting again. The process has to start all over again and a new lien has to be issued. But this time, management does not have to wait 3 months: Another lien can be issued after a warning during the first month of default.

When owners who are in arrears are in the midst of selling their unit, the status certificate will indicate the arrears and all amounts due as well as the lien. Upon closing, either the seller or the buyer will have to pay: A condo corporation always has precedence over most other creditors, including mortgage lenders.

The same process would happen in a case of owner’s bankruptcy: The condo corporation will have precedence over most other creditors, with a few exceptions, such as property taxes.

It is advisable to send a copy of a lien to institutions or persons who provide the mortgage as these institutions may pay all arrears in order to prevent the next steps from occurring.

What Liens Cannot Cover

Liens cannot cover:

  • fees that a board or a manager artibrarily charge and that are not contained in the Declaration, by-law, or rule;
  • "punishment" fees that boards/managers arbitrarily charge when someone (generally someone they don't like) breaks a rule;
  • rental fees for lockers, etc.
  • added fees for owners who pay by cheques or post-dated cheques rather than by pre-authorized payment;
  • for letters that lawyers send to frighten owners who question boards' lack of follow-up on problems

In additon, liens cannot be registered against a suite within the first month of arrears. Nor can liens be registered without prior warning. And these warnings should first come from the manager or the board in order to save in legal costs.

There is a great deal of abuse of liens--as reported in so many letters received. Please click here for Abuse of Legal Letters and Liens.

Garnishing Tenants’ Rent & Power Of Sale

When non-resident owners do not pay their fees, even after a lien has been registered, their tenants’ rental fees may be garnished by the condo corporation. However, this is an option that is rarely taken.

A letter has to be sent both to tenants and owners stating how much tenants have to pay the condo each month and how much (what is left) goes to the landlord. Tenants lose nothing in this situation but it is a nuisance and it may worry them. This letter is called a Notice of Attornment. If legal fees are involved, they are added to the total owed to the condo.

Tenants who refuse to participate can eventually be evicted after proper procedures have been followed. (The condo lawyer should be consulted.)

Let’s return to our fictive owners, the Tomtoms from above. After a lien has been registered and a reasonable period has passed, the Tomtoms still have not paid what is owed the condo. As they do not have tenants, the next step is to obtain a power of sale.

Power of Sale

A power of sale is obtained by the condo lawyer and served to the owner and mortgage provider, such as a bank. (At that point, the bank may decide to settle the issue and pay up.)

Once the power of sale is served to owners, they often rush to the office with all manners of excuses, good and bad! Unfortunately, condos have by then incurred financial losses and managers cannot accept excuses in lieu of payment!

When owners realize that managers are serious, they usually settle the entire amount by certified cheque. But, at that point, they have unfortunately accumulated interest and additional legal fees.

No one likes to reach the point where a unit has to be sold by the corporation. It is a painful procedure for owners and it represents a lot of work for management and board. This is a legal procedure that has to be followed carefully and involves, among others, obtaining estimates from three real estate agents as to how much the unit is worth on the current real estate market. The suite just can’t “be given away as a good deal” for the sake of expediency. Lawyers should be involved.

At that point, or before, a bank may repossess the unit and deal with the owners. However, the condo corporation has priority and most arrears, interests, and legal disbursements incurred have to be paid to the condo first, with a few exceptions, such as property taxes.

If the defaulting unit is sold, the condo is compensated for everything. The remainder of the sale proceeds is returned to the defaulting owner and other creditors, if any. In other words, a condo does not make any money out of this sale. It just gets back what it is owed.

Why Is a Status Certificate so Important?

The status certificate is a document, as per Section 76 of the Ontario Condo Act, that provides basic and essential information concerning the financial status of a unit and of the condo corporation. Its main focus is to inform a prospective owner of the fees, of any large increase that is going to come into effect, of any special assessment that is being contemplated by the board, and any arrears or lien that a particular suite might have.

In addition, it contains the condo declaration, by-laws, budget, reserve fund, insurance, management contract, rules, minutes of the last annual general meeting, and mention of any lawsuit involving the corporation. his certificate can run into one hundred pages.

Status Certificate

The purpose of status certificates is to allow potential buyers of condo units to have as much information as possible about their unit as well as the physical and fiscal situation of a building. Certificates also allow prospective owners to find out what the rules are, including whether pets are allowed. (Click here for What Are Rules For?)

Status certificates are ultimately boards’ responsibility. Many board members are unaware of this responsibility because this certificate is generally prepared by management companies. It is a good idea for board presidents to check the contents of status certificates, at least once a year, and to do so when the fiscal structure of a condo is about to change or has changed.

Status Certificate and Special Assessments

For instance, as soon as a board becomes aware that a steep increase in fees is forthcoming, or a special assessment will be levied, or a large expenditure will substantially lower the reserve fund, this information has to be included in the status certificate.

When a management company fails to include this key information, the board is ultimately responsible for this lapse. (The board may fire the manager but the damage will have been done.)

This is a problem which happens far more frequently than believed.

What can happen if this information does not appear in the status certificate?

Here is an example:

A prospective buyer obtains a status certificate and, one month after purchase, a special assessment for window replacement is announced. The new owner is asked to pay $3,000, which is the proportion of the special assessment determined for a suite of its size. But there had been nothing about this special assessment in the status certificate: The new owner confirms this with his lawyer and refuses to pay the levy. The manager makes his life difficult and insists that he pay up.

Who is right? The new owner is.

Indeed, it is very unlikely that the board and the manager were not aware, if not of the exact sum, at least that there were serious expenditures forthcoming for large-scale replacements and repairs and that additional funds were to be levied. This should have appeared in the certificate. It if had, the owner might have decided against buying the suite or, yet, might have budgeted accordingly or might have asked for a reduction in the price of the unit.

In other words, failing to announce a special assessment or a steep increase in fees or even an important expenditure against the reserve fund in the status certificate is akin to trying to sell a car with a rolled-back odometer: It constitutes false advertising.

So what happens? Well, the new owner will not pay. Instead, his $3,000 will be added to the total sum levied and will be paid fractionally by all other owners. Or, if the owner has paid, he can go to Small Claims Court to get the money back.

It is important that all prospective buyers obtain and carefully inspect status certificates. They can’t refuse to pay for a special assessment that is clearly announced if they have not read the certificate or have not requested one.  The responsibility of reading it is theirs and their lawyer’s.

In fact, many offers of purchase contain a clause stating that acceptance of the offer is conditional upon the buyer receiving the status certificate and being satisfied with its contents—although it is generally the buyer’s lawyer who examines it, hopefully closely. (Click here for New Vs. Resale Condos)

New owners should always ask their lawyer if he/she sees any problem in the status certificate. In theory, an owner could go against the lawyer if the latter fails to inspect the status certificate carefully and inform the owner accordingly.

Obtaining A Certificate

Who can obtain a status certificate? Anyone can, in theory. However, each unit's certificate may have slightly different contents because a certificate always lists arrears and changes in the exclusive-use common elements made with board approval, for instance. Therefore, in practice, owners who are selling and prospective buyers are the ones who obtain a certificate. Or their lawyers, or real estate agents, or a bank.

One can only presume that, if there is a case of identity theft that is suspected by management, they will refuse to deliver a certificate. Simple curiosity about a suite may not be an acceptable reason to obtain a certificate, but I am not aware of what decision this would entail on the part of management.

Persons who request a status certificate should receive it within 10 days after they have applied and paid for it. The request should be made in writing--in order to protect the owner. (See below.)

Generally, the fee for the status certificate ($100 + HST) is paid to the management company if it is so stated in the management contract. However, one president and his board have renegotiated their contract with the management company: The fee will now go to the condo corporation.

In the past year, several owners have written to report that a manager had refused to provide them with a status certificate until he or she inspected their unit. The manager is wrong: suites are private.

What to do if the Manager does not provide a Status Certificate?

You can still try to sell your unit. Prospective owners should be informed that, when a status certificate is not forthcoming, it should be taken to mean that "everything is fine." Therefore, if the new owner finds out that there was a special assessment right after moving, he or she does not have to pay it.

However, it is suggested here that sellers who have requested a status certificate keep a copy of the requesting letter and provide a copy to the buyer for legal purposes later.

 

Rental Fees, Guest Suites & Party Room Fees

When a condo corporation owns lockers for rental or additional parking spaces, these rental fees are usually determined by the size of the locker and the type of parking space. Managers can determine fees in conjunction with their boards. These are not the same as common element fees: they are rental fees. A contract is signed between residents and the corporation. Owners or tenants pay by cheque or pre-authorized payment.

When residents default on rental fees, no lien can be applied but managers may try to recoup the lost rental fees from deposits or, when tenants are involved, from owners.

Such rental fees are more difficult to recover. Therefore, residents whose payments are late should be immediately warned and, if they do not comply, refused access to the locker or parking spot before the next month begins. Proper contract wording is essential in this respect as is a manager’s vigilance.

The same procedure should take place when residents rent a locker or a parking space from other residents.

Rental fees are generally paid, along with a refundable security deposit (in the event that damage occurs), when guest suites and party rooms are reserved. Forms describe the obligations and rights of residents who use these facilities. 

Rental fees may be included in the declaration. Or, yet, a by-law may be passed in this respect. Fees have to be reasonable. Many condos have rental fees for guest suites or for bowling lanes. Party room fees as well as fees for the theatre or viewing room may or may not apply. They are often levied for parties but not, for instance, when the room is used for individuals who want to study or when residents have social gatherings and meetings among themselves.

The rationale for fees is that the use of these facilities brings additional expenditures to the corporation: When used, these facilities require maintenance and time on the part of staff. Staff has to clean and inspect. The kitchen in the party room has to be scrubbed. Energy is being used. Television and even internet access are paid by the corporation. In addition, guest suites and party rooms are generally used by residents’ visitors.

In contrast, other recreational facilities such as pools are maintained at all times and the water has to be kept warm no matter whether it is used or not.

Refundable Deposits And Payments For Damage

Refundable deposits may be required before reserving the service elevator for a move or when leasing a party room or a guest suite or, in some instances, for the use of the BBQ. Residents moving out may be requested to provide a certified cheque to prevent situations where a bank account does not have sufficient funds.

These deposits are returned in full after inspection of the facility used and adjacent corridors. If damage has occurred, the deposit is held until cleaning or repairs have been completed or costs estimated. The condo will then return the unused portion of the deposit.

For instance, when a guest spills wine or tomato juice on carpets or sheets and a lot of work is required to remove stains, then the cost is reimbursed from the security deposit. Or when a guest or a resident breaks objects or furniture, then they are charged for it—when the inspection can prove that they have done it.

Damage not paid for by a guest or tenant becomes an owner’s responsibility. It is, therefore, important that the concierge or the manager do a pre- and post-inspection to assess if any damage has occurred.

When residents damage a part of the common elements or fail to maintain their exclusive-use common elements (parking space, balcony, yard, fan coil), tenants or owners have to be duly notified in writing and given the opportunity to remedy the situation within a reasonable period of time. When this period expires, the corporation has to carry out the maintenance or the repairs if this maintenance is necessary to prevent deterioration or damage or injury to others. Owners are then charged for the costs. (Click here for Who Is Responsible for Maintenance, Repairs & Alterations?)

In large condos, a notice may be posted ahead of time announcing that oil stains in parking spaces have to be removed by residents or a fee will be levied if this has not been done by the time the power washing of the garages takes place. It is also a good idea to educate residents about the fact that automobile fluids, especially oil, damage water proofing membranes that cover the floor of parking areas. It is important to inform residents about the costs of replacing this membrane, which can be in the hundreds of thousands of dollars.

In times of digital cameras, managers may take a picture of each parking space that is stained with automotive oil as an additional proof for residents in the event that they contest the charge or refuse to comply.

Owners may try to recoup the costs incurred by tenants. But owners are ultimately responsible for such maintenance and damage. Were maintenance or repairs necessary to prevent injury, deterioration of corporation assets, or damage to other suites and common elements, and the sum not paid, it can appear on the status certificate and a lien procedure may be started. Owners generally pay all outstanding debts before selling because buyers’ lawyers will require it.

Owners’ Meetings and Voting

There are two types of meetings to which owners have a right: the regular annual general meeting (AGM) and requisitioned meetings. The latter are less common but could be even more important. In both instances, the issues of quorum, proxies, and of voting are key and we begin with these.

What is a Quorum?

 A quorum is a specified minimum percentage of owners who have to be present, either in person or through a proxy, for a meeting to be valid. In Ontario, it is 25% of all units in a condo.  If one person owns 30 units in a condo of 120 units, this person counts for 30 and can constitute the quorum by herself!

When too many owners leave a meeting before it is concluded and the quorum is lost, the meeting has to be stopped while an attempt is made to regain the quorum. If this fails, the meeting has to be adjourned. No vote can be taken and no business can be transacted.

What Are Proxies?

A proxy is a person who represents an owner. This person receives a proxy form. The usual language in condos refers to the proxy form as the proxy. This form--generally one page-- serves several functions.

First, proxies allow owners who cannot attend a meeting to be represented to help constitute a quorum (and that’s very important). Second, proxies allow owners to vote for the candidates of their choice or for a by-law without attending the meeting.

Proxy Form

Owners have to fill out the proxy form, write the names of the persons who will be responsible for the proxy or will attend the meeting on their behalf, and write the names of the candidates whom they want to elect. (Click here for How to Fill Proxy Form)

At the bottom of the proxy form, owners have to sign and date. The proxy is then given to the person named on the form. If this person will attend the meeting, then he or she brings the proxy to the registration desk before the meeting. The manager or a board member will then register the proxy.

If owners want to vote, they have to write the candidate’s name or put their signature next to a proposed by-law. No one else can vote, not even the proxy person. This Ontario Condo Act requirement was put in place in order to eliminate abuses of power.

Cautionary Note

Unfortunately, in some condos, boards, managers, or groups of owners occasionally do fill out proxies in order to elect whom ever they want or to pass a by-law they want. This constitutes fraud.

While someone can help an owner fill out a proxy, only the owner can fill in candidates' names and sign the proxy form. No one can vote for someone else!

If an owner or a board member is collecting as many proxies as possible to ensure a quorum, these filled forms should be brought to the management office so that it is pre-registered. This saves time and prevents long lines forming during registration.

However, in situations  where both boards and managers are in collusion against owners or a requisitioned meeting is taking place, owners with a lot of collected proxies should hold on to these until the meeting itself.

An owner who owns two suites can attend a meeting in person and bring a proxy form (all filled out) for his or her second suite. If she can’t attend the meeting, then she has two proxies to give to someone else or bring to the office. In Ontario, an owner has as many proxies as he or she has units. An equivalent situation exists in other provinces.

This is a problem in small condos when one person may own 6 of the 10 suites. In effect, such a person can elect anyone he wishes: He rules the condo. It is also a problem when one company or one person or one family owns many suites in a high-rise condo. Such a large number of proxies is sufficient to sway votes.

Proxies have to be retained for at least 90 days after the AGM or a requisitioned meeting in the event that someone contests their validity.

What Voting  Percentages Are Needed?

In Ontario, voting percentages needed depend on what is voted.

The proportions of votes needed for various purposes vary and this can be confusing.  Before owners call a requisitioned meeting, for instance, they have to understand how many votes they will need to accomplish their goals.

In order to clarify this issue of percentages, all the percentages needed to pass a motion, a by-law, or to elect directors in Ontario are indicated in a table below. As can be seen, obtaining an affirmative vote is easiest for AGMs and elections of directors because only a majority of the votes of owners present, in person or by proxy, is necessary once the 25% quorum of all suites is achieved.

In other words, it takes a quorum of 25% of all suites for an AGM to proceed and a simple majority vote among those present to elect directors.

However, removing directors or an entire board is much more difficult because this requires an affirmative vote by a majority of all suites, or over 50% of all units. This means that, in a condo with 100 units, 51 affirmative votes are necessary, either in person or by proxy, for the removal of a director. Obviously, it is difficult to obtain the cooperation of so many owners of units, especially in condos where a majority of owners live elsewhere. 

 

PURPOSES VOTES NEEDED
Quorum for the AGM to proceed 25% of all suites, in person or by proxy, must be present
For an affirmative vote at the AGM A majority of the suites represented at the AGM
To elect directors at the AGM The candidates with the most votes win
To elect the director for the owner- occupied position The candidate with the most votes from owner-occupied units wins
To pass a by-law An affirmative vote from a majority of all units
To amend the declaration to change the proportion of fees paid by units Written consent from 90% of all units
To amend the declaration Written consent from 80% of all units
To call a requisitioned meeting 15% of all units must sign a petition
To permit the board a large expenditure that is over 10% of the budget (either at the AGM or at a requisitioned meeting) An affirmative vote from 66% of all units
To vote for the removal of a director at a requisitioned meeting An affirmative vote from more than 50% of all units
To vote for the removal of the director who holds the owner-occupied position An affirmative vote from more than 50% of all owner-occupied units

Annual General Meetings

AGMs should be held annually, within six months after the beginning of a new fiscal year. AGMs constitute the only opportunity that owners have to gather, meet with each other, get acquainted with the board of directors in its entirety, and hear out the issues and even be able to ask questions.

Condos generally post a notice several weeks before the AGM to seek candidates for the board when there is a vacancy or a director’s term expires. (When a director intends to continue, he or she has to be a candidate again.)

There is no limit as to the number of consecutive terms that a director can serve--at least, in Ontario.

The deadline for the receipt of candidacies is stated on the notice. Also stated may be a sentence to the effect that candidates should present a brief and relevant resume as well as a statement of intent explaining their goals.

Notice of Meeting

Then, a written notification of the annual general meeting has to be sent to owners’ address of residence at least 15 days before the meeting. However, only owners listed on the 20th day before a meeting are sent a notice.

The notice of meeting, also called the AGM Package, contains the agenda, the minutes of the previous year’s AGM, the auditor’s report and audited financial statement, the certificate of insurance, statements from candidates for election to the board, and a proxy form.  A reserve fund study and related plan may also be attached where relevant.

The Meeting Begins

The official meeting can begin only when there is assurance of a quorum. Let's say that there is a quorum but it is only by one person (or unit). If, during the course of the meeting, this person leaves, then the quorum is lost and the meeting has to end at that point.

Only owners, their proxies, or their mortgage company can attend these meetings along with the management company and the auditor, as invited by the board. Owners in arrears for more than 30 days can attend but are not permitted to vote. Attendance by any other person is with permission of the chair. The chair has control over the assembly and unruly or rude persons can be evicted accordingly.

It is better for the dignity of a condo, as well as for its property value, if everyone is polite even when controversies exist. Discussion should be encouraged but a discussion can be civil and so can disagreements. 

Owners should not be prevented from asking questions and raising issues.

Many owners have writen to complain about the way AGMs are conducted in their condos. Some of these letters are posted in Issues with Lawyers.

The president of the board generally chairs the meeting, although the condo lawyer or manager can do so with the permission of the assembly. Except in complicated legal situations, which should rarely happen, it does not inspire confidence when a president doesn’t chair the meeting.

Minutes are often taken by a paid recorder. At least two scrutineers from the assembly are elected after the chair asks for volunteers. Scrutineers are the persons who count proxies for quorum and then count votes. The manager cannot do this alone: The process needs transparency.

The chair, upon being told that a quorum exists, can proceed with the meeting. The AGM includes the approval of the minutes of the previous year, the president’s report, the auditor’s report, the election of the auditor by owners, the candidates’ statements, and the election of directors. On special occasions, by-laws may be presented and voted upon. There should be a question period.

Before minutes are approved, the chair must ask if there are corrections. Corrections should have been made before the AGM package was printed. The person responsible for these minutes is the person who chaired the previous meeting, generally the president.

If the president has resigned between the two meetings, he is still responsible for these minutes, especially for the president’s report. In such a situation, the board should have made the minutes accessible to the former president for corrections.

A vote for the approval of the minutes should not take place until the minutes are corrected or an agreement to correct them (when corrections are too numerous) is reached and accepted by owners.

President's Report

The President’s report should be accurate and as informative as possible. It should explain what has been accomplished in the past year and what is intended for the forthcoming year. An effective president uses this report to frankly discuss the positive aspects of the current situation as well as the negative ones that need to be corrected.

He or she should use this opportunity to motivate owners to cooperate on some issues, whether it is energy savings, cleanliness, civility, treatment of staff, or noise problems.

Meeting

The president's report should be recorded and printed in the following year's AGM package as it was given--not embellished to reflect ideas that the president subsequently had...

Election of Directors

The chair will first ask if there are nominations from the floor. A person so nominated can become a candidate. Then, candidates give their statement, one after the other. This is the only opportunity that owners have to hear candidates. Unfortunately, candidates are rarely asked questions that could be more revealing than their prepared speech.

It is suggested here that about 3 questions be asked from the assembly or from the board, and each candidate should answer each question. A rotation should take place so that the same candidate is not always the last to answer. If these questions pertain to key issues in the condo, the answers should be revealing.

However, such a session should be carried out with dignity and personal questions avoided. Otherwise, no one will want to go on the board so as not to be subjected to personal indignities.

Each owner in attendance has received a ballot during registration. The manager or a board member passes a closed ballot box. The votes are counted by the scrutineers and the results brought to the chair who announces the names of elected directors.

Auditor's Report and Election

The auditor generally explains in person the report he or she has given the board and which is included in the AGM package. Owners can ask questions, time permitting. It is helpful to send complex questions ahead of time so that the auditor can bring the necessary documents to answer them credibly.

Auditors are elected by owners at the AGM. (Click here for Condo Auditors and Lawyers)

Requisitioned Meetings

Requisitioned meetings are special meetings. They are usually called or requisitioned by owners or by a board member or the entire board. For instance, if 3 of 5 board members suddenly resign, then the remaining two board members have to call a meeting as soon as possible because no board quorum exists and no business can be carried out. In such a situation, the remaining board members cannot appoint directors because they themselves no longer constitute a board: New board members need to be elected by owners as directors can be appointed by the board only when a quorum of directors remains.

Meetings are generally requisitioned by owners when:

  • a new rule is presented by the board and a number of owners disagree with it;
  • a board posts a notice to the effect that an existing rule is changed or is eliminated and a number of owners want it to remain;
  • some owners want to obtain more information from the board or have the board hear their concerns;
  • owners wish to vote against a board's decision to install a new system or proceed with an improvement that goes beyond 10% of the budget;
  • some owners want to remove a director from the board or want to remove the entire board.

In the latter case, the petitioning owners  would need to have a slate of competent replacement candidates willing to be on the board to replace the others.

How To Requisition a Special Meeting of Owners?

Please click on the next section.

How Is a Requisitioned Meeting Organized?

Step 1: Organizing the Petition

The first step in requisitioning a meeting is to orgainze a petition  with signatures of at least 15% of owners of all suites.

This means that owners who take the initiative should draw up a petition, list the issues to be discussed, or, when this is the goal, give the name of the director who should be removed and the reason why. Then, they have to obtain enough signatures (owners’ names and suite numbers) to cover 15% of suites.

This task will be easier if the initiating persons have a small network of neighbours who agree with their cause and can help obtain signatures in the condo.

Unfortunately, when a great proportion of owners do not reside in the condo, the task will be more difficult—especially when many owners do not speak English. Preparing a translation in at least one key language is helpful.

At least in Ontario, if the intent is to remove a director or the entire board, the other issue that the initiators have to consider is that the affirmative vote needed at the meeting itself is a majority of all units or over 50%--and not just a majority of owners present at the meeting. Therefore, if too many owners live elsewhere, this will be nearly impossible to achieve. (See Section 46 in Legislative Brief)

Step 2: Obtaining the List of Owners

Once signatures for 15% of units have been obtained, requisitionists approach management (or the board, depending on the situation) to organize a meeting. At that point, this is where things may get "sticky" and “politics” may begin.

And things are more likely to get sticky when managers feel threatened by the meeting. For instance, incompetent managers can lose their contract as a result of a change from a bad board to a good board. As well, managers may refuse to proceed if they dislike the initiators, or they like the director whom requisitionists want to remove. In theory, managers should remain neutral: But the reality is different.

Therefore, managers and boards, especially those who are ignorant of rules and the Act, may give a flat-out “no.” Period. If this happens, keep reading below. Or a manager may say, “OK, but you organize it.”

Requisitioned meetings are a right given under the Condo Act. (The initiators should consult the relevant sections in the Condo Act which begin with Section 46.)

If the management or board refuses the requisitionists, then, the initiators will need access to an owners’ list and addresses in order to send out the notice. The condo corporation is required to pay for the costs of printing, labels, paper, envelopes, and stamps.

If everything fails and the board refuses to call a meeting and to provide a list of owners, the requisitionists should meet and decide if they will consult a lawyer to obtain a Court order forcing the board to comply.

As you can see, unless you are fortunate to live in a condo where over 70% of owners are resident, it is practically impossible for a small group of owners to requisition a meeting for the purpose of removing directors if the board prevents it: Who can afford to hire a lawyer and pay Court fees? (For the section on Owners' Problems of Legal Recourse, click into Auditors and Lawyers; also see letters in Issues with Lawyers)

Step 3: Organizing the Notice for the Meeting

Let’s assume that management agrees to organize the meeting or provides the list of owners and accepts to reimburse the initiator afterwards. What needs to be done?

  • If the goal simply is to request that the board discuss or provide more information on a given issue, then all that is needed is to draw up a notice stating the topics to be discussed. You will also need to include a proxy form in order to make certain that you will have a quorum of 25% of all suites. 
  • If you want to object to a new rule or to prevent a useful rule from being withdrawn by the board, then you will need to state this on the agenda, provide the exact wording of the rule that you object to, or how it should be reworded, if this were the case. You could ask owners to sign their name on the proxy form to indicate that the rule is not acceptable or that the rule should be retained.  If a majority of owners who are present (either in person or by proxy) vote in one direction, then, this is what passes. 
  • If you want to prevent your board from spending over 10% of the annual budget on an improvement, replacement, or change, then the onus really is on this board to obtain  affirmative votes from 66% of units in favour of this project. It should actually have been this board’s duty to have requested owners’ permission. (Click here for Owners’ Permission)
  • However, if a meeting is called to remove a director, things are more complex. The name of the director and the reason for removal has to be stated. Examples: does not communicate with owners; conflict of interest; never attends meetings; owners disagree with policy; does not follow rules--whatever the case might be. In other words, one does not remove a director simply because he is unpleasant! 

When a large proportion of owners speak two or three languages other than English (or French in Quebec), it is helpful when key communications are translated. This is a civic gesture,  good business, and will help achieve the goals of the meeting.

Then, the proxy form gives the director’s name and owners sign for removal (or against). If more than one director is being removed, a vote or signature has to be received for each one individually.

The notice of the requisitioned meeting should also include the name(s) of one or more candidates who have already volunteered to replace the removed director. This or these candidates should also have provided a statement of intent and goals. Owners who cannot attend have to insert the name of the candidate they wish to vote for on their proxy form. There are variations in terms of the layout of these proxies. (Click here for a Sample Proxy Form)

At this point, as a majority of or 50% plus of units have to vote for a director’s removal, the requisitionists will have to do quite a bit of work to secure a sufficient number of proxies, especially from non-resident owners in large condos.

When a Requisitioned Meeting Fails

If there is no quorum at the meeting itself (25% of all suites), the requisitioned meeting will die there and the board of directors does not have to call another meeting unless the group requisitions another one. Similarly, when the goal had been to replace a director or a board, if the vote is short of a majority of all units, then the director stays. That is, the goal of the requisitionists is rejected.

In either case, it may be pointless to pursue the issue by organizing yet another requisitioned meeting, even if the requisitionists are right (and they generally are). This would constitute a waste of resources and of time. As well, unfortunately, the person or persons who have spearheaded the drive for the requisition are often discriminated against by the board and the manager after.

However, if the issue is a very serious one, the requisitionists might want to consider another venue that would allow for a remedy to the situation they are facing. Carefully approaching owners who have not been involved is important. As well, some of the requisitionists or other like-minded owners may present themselves as candidates to the board when a vacancy occurs later. This website might be a useful instrument in convincing owners. (Click here for What Should Be Done To Improve Condo Governance and Help Owners?)

Finally, if the board is in contravention of the Ontario Condo Act, owners may use Section 134 of the Act in order to obtain a Compliance Order (with the help of a lawyer).

Complications Arising from the Need for a Quorum

As mentioned, a quorum of 25% of all units, whether present or by proxy, is required for an AGM or a requisitioned meeting to validly proceed.

If a quorum is not reached, a meeting cannot proceed. Generally, the chair allows 30 minutes to expire in the hope that late arrivals will help constitute a quorum. If this fails, an AGM has failed. However, when a by-law is going to be passed, a meeting can be adjourned rather than cancelled and no vote should be taken on any issue. Adjourning the meeting allows for all proxy forms collected so far to be retained and counted when the meeting resumes at a later date. However, a requisitioned meeting that does not have a quorum generally dies there.

This precautionary note is very important because there have been instances when a chair started a meeting and began the process of presenting and voting for by-laws only to find that there were not enough units present or not enough affirmative votes. If there is not enough support for a by-law, this is fine because this is a democratic process. (Click here for What Are By-Laws?)

But if the issue is that there are not enough votes because there is no quorum to begin with, then a new AGM has to be called and a new set of proxies has to be collected. This is very time consuming and costly. Instead, before any vote is considered, the chair has to make certain that a quorum exists and that the required minimum number for a potential affirmative vote is present.

But for by-laws or a change in the declaration, the chair has to make certain that at least 50% or 66% (or 80% or 90% depending on the issue) of units are represented either in person or by proxy.

A board trying to pass necessary by-laws or an amendment to the declaration has a duty to seek enough affirmative votes. Therefore, notices can be posted or sent to owners explaining the importance of the forthcoming vote and asking for proxies if they cannot attend in person. The board collects as many filled out proxy forms as possible.  But the board cannot fill out the forms. (See Owners' Meetings and Voting)

(When owners feel that a by-law is not in the best interest of their corporation or contravenes other Acts, they should turn out and vote against it. Or, if the way the proxy form is written does not allow for a negtive vote, then owners should refuse to hand out their proxy.)

Now, suppose that, at the AGM, despite all these precautions, the chair realizes that either there is no quorum or there is not enough owners present to ever reach an affirmative vote. The meeting should be adjourned to another date.

In the meantime, the chair is perfectly entitled to ask if owners present can attend the continuation of the meeting at a later date. If too many will not be able to attend, the chair can choose to give the president’s report, have candidates give their statement, take owners’ questions, and ask for their proxies.

When the meeting is continued a few weeks or a month later, the board will have in the meantime been able to gather more proxies. The meeting will then proceed as usual, even though only a handful of owners may be present—but the board has enough proxies not only for the quorum but for an affirmative vote for by-laws and for the election of directors. (Click here for Sample of Proxy Form - PDF format)

Information Meetings & Turnover Meetings

Information Meetings

There is nothing that obligates boards to hold information meetings, often called "townhall meetings." However, such meetings are indicated when an important issue arises, such as when suites are to be individually metered for electricity. In Ontario, boards can now meter for electricity without owners’ approval. Nevertheless, it is an excellent idea to hold information meetings.

Indeed, boards who proceed with important changes, such as roof replacement, a special assessment, a new security system without duly informing owners in person or in writing show disrespect toward owners

An information meeting regarding new by-laws can allow boards to collect proxies for a quorum and the passage of the by-law.

Otherwise, boards should regularly communicate in writing with owners and residents regarding forthcoming maintenance activities, repair and replacements. They should explain the rationale for changes, costs, and what residents will have to do, for instance, to save energy. 

As seen in the section in Readers Respond, the most frequent specific complaint received stems from boards' or managers' failure or refusal to communicate with owners, especially about substantive issues. (Click on Readers Respond )

Turnover Meetings

The turnover meeting is the first meeting of owners after the builder is no longer the majority owner and the condo is registered under the Lands Titles Act or the Registry Act. The condo is then turned over to the corporation by the building company. This generally occurs when 51% of the units have been fully purchased. The turnover meeting has to be held in order to elect an owners’ board.

But, by registration, it often happens that a building company still owns a number of units and, as a result, may have many votes. This may give them an advantage in selecting board members who are friendly to their interest.

Nevertheless, it is often the case that the first board is on friendly terms with the builder. Indeed, building companies have their own managers who, during the months before registration, administer buildings, answer residents’ questions, and address their concerns. These managers often are the ones who approach prospective candidates for the board. As a result, some candidates to the first board may be related to the builders as relatives, friends, employees of the builder’s law firm, or relatives of their employees, etc.

This turnover meeting follows the same procedure as all other owners’ meetings. However, the building company or the previous owners of the building have to turnover a series of documents to the new board. These documents are specified in Section 43(4) of the Condo Act in Ontario.

Rules

One of the key documents turned over to the new corporation consists in the registered declaration, by-laws, and rules as well as copies of all insurance policies. Additional documents are delivered to the board no later than 30 days after this first meeting, including all warrantees and as-built drawings.

How to Fill Out a Proxy Form

The following instructions are based on a sample proxy form. The file is in PDF format and can be opened with the free Adobe Reader.

For # 1, simply put in your unit number, such as 1010 or 4.

For # 2, print the name of the person to whom you are giving your proxy form. It can be a friend, a relative, a neighbour, or the manager, or the president of the condo, or a board member. It is preferable that this is a person you trust.

Just in case this person may be absent, she or he can then pass on your proxy to another person. This is why you have to give another name of yet another person you trust. (But it is not a huge problem if you do not provide a second name.)

For # 4, after you have decided whom to vote for, then print the names of the two candidates. (At times, there is only one name and, if you don’t want this person to be elected, then put a line instead.) Or put the name of another person you would want to see on the board: It is not likely that this person will be elected but you will have made a point.

If you don't like any of the candidates, please do not leave the space blank because this is an invitation for someone to fill in names that you don't want...and this is fraud.  Instead, draw a double line across where the name should be so that no one can add any name; or, yet, add the name of a person you would like to see on the board (this is called a "nomination").

The same procedure applies for # 5.

# 6 occurs only occasionally. You want to find a way to say whether you are voting for or against this by-law. In some condos, there is a tick box with yes and no. But this is a problem because anyone can insert a tick mark....! or circle a yes or no choice....!

At the end, put the date following the  example below:

Dated this 10th day of January, 2012, at 7:15 and circle either am or pm.

Then sign your full name and print it in the same type of print that you have used for the votes—this is helpful to detect a fraudulent use of your name. Then, include your unit number as done for # 1.

Boards of Directors

  

All condos have a board of directors or an equivalent group by any other name, such as a council, depending on the province and territory. 

What Are Boards' Duties?

Boards of directors run condo corporations on behalf of owners: They represent owners. As an entity, they are responsible for making all major decisions regarding the maintenance of buildings and grounds, condos’ finances, and must uphold and enforce the Condo Act, the declaration, by-laws, and rules. 

It is a prime board duty to ensure that rules and the declaration are applied uniformly and not just from time to time as suits directors or management.

Boards cannot refuse to enforce rules just because only one owner complains that a particular rule is not followed.

Failure to enforce rules fairly and consistently (and follow them) generally leads to problems down the road. These can result in a lowering of the standards of comportment in the building, degradation of civility and property, maltreatment of staff, abuse of power on the part of one or more board members, as well as financial problems—all potentially lowering the value of owners’ units on the real estate market.

(When boards fail to enforce or follow rules and the Condo Act, owners may be able to seek a court order forcing them to comply--under Section 134 of the Ontario Condo Act. However, it should be added that, unfortunately and unfairly so, the Act also permits the condo corporation to charge 100% of any legal fees incurred by the board and the owner in obtaining compliance. This is another example of a useless "right" that owners have in theory but which ends up costing them dearly in practice. Ths is why it would be so important to have a Condo Act that is overseen by a special agency to better protect owners.)

Boards of directors plan and oversee the fiscal health of the corporation and are responsible for hiring a management company to carry out the tasks associated with their duties and day-to-day work.

Boards have to ensure that the staff is humanely treated, is qualified, and actually works; that the management company collects all fees from owners in a timely fashion; that invoices are paid, proper records are kept, the budget is duly prepared, contracts are awarded after a tendering process, and adequate insurance is maintained.  Reserve funds have to be sufficient, and annual general meetings carried out. Boards are also responsible for the reliability of status certificates. 

Boards have to address residents’ legitimate complaints, make sure that their needs and rights are respected, and that they can enjoy their units peacefully, as per the Act.  Boards are also responsible for communicating with residents, and particularly owners, so that owners are informed and feel empowered.

Boards should not turn into exclusive social clubs protecting directors or managers who fail in their duties. Rather, board members owe their allegiance to their condo, the Act, the rules and by-laws. Boards do not represent themselves nor the management: They represent owners and should be accountable to them.

It is the duty of boards to maintain dignity, respect for others and property, and general civility in a condo building or townhouse complex.

Since this website has been posted, countless letters of complaint have been received from owners and many board members regarding abuses on the part of various boards and particularly presidents. To read these letters, please go into the Readers Respond section, or click here for Issues with Boards of Directors and then "Harassment" and "Defamation" Redefined.

As well, numerous complaints have been received about managers who refuse to help owners get in touch with their board. It is imperative that there be a special email address or mail box that allows owners to contact their board in each condo. Boards cannot refuse to be contacted. Furthermore, boards should allow owners to make reasonable complaints without threatening them with legal action.

A Good Board:

  1. Communicates with owners and residents on a regular basis, explains its decisions, openly discusses problems and victories, has a policy of transparency and truthfulnes. Postings on bulletin boards accessible to all residents are key in this respect. Information meetings may take place occasionally.
  2. Addresses residents' legitimate complaints/concerns/requests and respects useful suggestions.

Lack of communication and disregard for owners and condo assets are at the root of most condo problems. It's the main red flag and it is reflected below in many problems in the section on what constitutes a "bad" board.

  1. Follows and enforces condo rules consistently and for everyone: Board members have to follow rules themselves if they expect others to follow them and should not show favouritism.
  2. Exercises due diligence regarding contracts for repairs, maintenance, and staffing. In other words, a good board seeks tenders. When maintenance problems arise, a good board not only seeks advice from non-interested parties (to avoid conflicts of interest), but  also asks if there is a better and less expensive solution than the one suggested by contractors. (Click here for Issues of Fraud, Kickbacks and Conflict of Interest for problems raised by readers.)
  3. Is constituted of members who have no axe to grind or a vested interest or a personal agenda.
  4. Always respects a condo's finances, assets, and owners' monies.
  5. Makes certain that the premises are well maintained and that the staff is competent and hard working.

In contrast, according to the letters received,

A Bad Board:

  1. Rarely communicates with owners on substantive issues and prefers to inform them as little as possible. This seems to be a key ingredient in a lowered quality of life in condos and is reflected in the many other problems that seem to accompany this issue.
  2. Responds dismissively or angrily when owners justifiably complain to them about problems (such as noise and broken rules) and lack of services (such repairs, cleanliness, garbage, recycling, and odours) or unnecessary expenditures.
  3. Or, yet, simply ignores owners' concerns.
  4. Threatens owners with legal action when they complain justifiably or make suggestions; or yet when owners complain about management, staff, and contractors. (See new letters in Abuse of Legal Letters and Liens)
  5. Mistreats, harasses, threatens, or refuses services to owners who have justifiably complained or made useful suggestions.
  6. Rubberstamps decisions made by the manager, administrator, superintendent or contractors without independently studying the issue. Does not get quotes for projects or services. (See the new section on Misuse of Funds and Fraud)
  7. Spends monies for upgrades just to suit themselves, contractors, or managers.
  8. Refuses owners' requests to view corporation records and documents.
  9. Does not supervise manager and staff sufficiently. As a result, the work and services may be of lower quality or very little work may be accomplished. Or, yet, the staff is actually the power in the condo.
  10. Forms a clique, often with management, against owners, and fails to understand that a board represents owners and not themselves nor the management/staff.

What to Do about a "Bad" Board?

Very often, there is not much that owners can do because there is no independent institution that regulates the implementation of the Condo Act.

  1. Owners can try to requisition a meeting to discuss the issues. (Click here for Requisitioned Meetings).
  2. If this fails, they may requisition a meeting to replace the board--a more difficult step because of the difficulties in getting votes, especially in condos that have a high percentage of owners who live elsewhere.
  3. When a board fails in many of its functions, especially in terms of not following the Act and misusing monies, owners can  attempt to get a court order of compliance, under Section 134 of the Act. The problem resides in finding a condo lawyer who will be willing to take the owners' case; owners will not be able to count on the corporation's lawyer because he or she will likely side with the board.

How  Are Directors Elected and How Many? 

The number of directors generally ranges from three in smaller condos to whatever a condo’s declaration specifies. A common and functional number is five and a quorum would consist of three directors present at a board meeting.

When a vacancy occurs on a board because a director resigns, the remaining directors may appoint a temporary director to serve on the board until the next annual general meeting or AGM. At that point, the director has to become a candidate to the elections if he or she is interested in remaining on the board. (Click here for Owners’ Meetings and Voting)

Directors are always eventually elected by a condo’s owners at the AGM or at a requisitioned meeting. A board cannot "eject" or get rid of one of its members and neither can the corporation lawyer, unless a specific by-law exists on this issue--and such by-laws can be dangerous in terms of freedom of speech and can prevent honest directors from trying to fight a corrupt board. Only owners can "vote out" directors or an entire board at a special requisitioned meeting.

In Ontario, condos have one director who can be elected for three years by resident owners only (although the candidate does not need to be a resident owner). This is called “the owner-occupied position.” It should be more clearly named "position voted on by resident owners only." This position is more and more important in view of the large number of non-resident owners who often have little interest in the condo because, for them, this is just an investment.

What Are Directors' Qualifications?

In a nutshellf, very few qualifications are required, except for willingness to learn and honesty.

The Condo Act of Ontario only specifies that directors have to be 18 years or older, not in bankruptcy, and do not have a lien registered against them that has not been discharged 90 days prior to the elections. The other surprising aspect is that someone with a criminal record can in theory become a director.

Raccoon Thief

However, a condo can pass a by-law that will be more specific in terms of who can be elected to the board, provided that this by-law is within the purview of the Act.  For instance, a by-law may require that:

  • all directors be owners. This makes sense because owners are more interested in a condo’s welfare than non-owners would be;
  • or  all directors be either owners or the spouse of an owner, or the adult child of an owner, or the parent of an owner (many adults buy condos for their parents or grown children);
  • all directors be residents;
  • no director shall be an employee of the corporation, such as a superintendent, a manager, a security personnel, in order to avoid conflicts of interest and problems in the line of authority;
  • no two members of a same family be on the board.

However, in deciding to restrict who can be a board member, a board should be concerned that, in so doing, there will remain a sufficient number of interested owners. For instance, if, in a condo, most owners are non-resident, the third option above may present a huge problem.

It is generally very difficult for condos to find good candidates for boards.

In fact, often there is only one candidate for each vacancy on the board. In such a case, the candidate is "acclaimed" at the AGM, not actually elected. These are elections by default! This also makes it easy for a bad board to bring in its own candidate and perpetuate itself, to owners' dismay and feelings of powerlessness.

Perhaps a more relevant question to ask is, What is a Good Board?

Officers' Duties

The difference between directors and officers is this: Directors are board members elected by owners. Officers are persons appointed by the board to fulfill certain functions--they generally are directors. Hence,  usually all officers are directors, that is, they are appointed from within the board elected by owners.

A director who is an officer can be removed as officer by the board; he or she can then decide whether or not to remain on the board as a director. However, boards cannot remove directors unless they requisition a meeting of owners for this purpose.

A condo corporation must have three officers: a president, treasurer, and secretary. This is the minimum. Many also have one or more vice presidents. In Ontario, of these officers, only the president has to be a board member elected by owners.

A board member can combine two functions. For instance, a president can also be the treasurer, as these two functions complement each other. Or the secretary can also be the treasurer.

A board can appoint officers who are not on the board when directors do not have the time or the willingness to be treasurer or secretary. It is preferable that all officers also be directors: External positions can present problems of confidentiality.

The PRESIDENT’s role resides in the general supervision of the business and affairs of a condo corporation. Efficient presidents are “movers” who present issues and projects to their board, develop policies for board approval, communicate with residents and owner, are faithful to the declaration and rules, and inspire boards to move ahead with projects and solve difficult issues.

In other words, efficient presidents are leaders on behalf of their boards and owners. They inspire trust among owners and board members. They also try to establish links with various organizations in their neighbourhoods. Presidents oversee managers’ duties and activities. As well, they chair board meetings and owners’ meetings.

One aspect of the potential duties of a president that is little known is that he or she can become the condo’s manager when a board decides not to hire a manager or when a condo is too small to afford one. (Click here for Self-Management)

However, a president or a director who becomes the manager may want to hold only the position of manager in order to avoid conflicts that could arise in being both the employer and the employee.

The VICE PRESIDENT may perform some of the president’s duties if they so agree and replace him or her when absent. Similarly, the vice president may chair meetings during the president’s absence.

The TREASURER is responsible for the finances of the condo, including making sure that the financial statements are accurate, the budget is done in a timely fashion, and the reserve fund is sufficient. The treasurer may also be responsible to present to the board a plan for the investment of funds.

Budget

The SECRETARY is generally the custodian of the corporation’s records. The secretary is responsible for minutes taken at meetings (although he may not be the one who takes them), and for notices sent to residents for the annual general meeting. In actual practice, this role of secretary is often partly carried out by a president or a manager.

Board Meetings

Boards should have meetings regularly, preferably monthly. It is not advisable for factions on the board to meet unofficially and exclude some members. Decisions made during such “meetings” are not valid

Similarly, when directors resign and no quorum exists, new decisions can no longer be made and the remaining board members need to requisition a meeting for the purpose of electing directors. (Click here for Requisitioned Meetings)

When one board member is absent at a meeting and a vote is a split one (half for a motion, half against), then the motion is defeated and cannot pass.

An occasional board meeting may be held via email or teleconferencing, but only if there is a quorum of directors and if they participate simultaneously.

When an email vote takes place between board meetings, the issue voted upon should have been discussed at a previous meeting. For instance, a board may have agreed to go ahead with some structural repairs but decided to postpone the vote pertaining to the choice of a contractor pending more information obtained by the president. When this information is available, it is sent via email and a vote can take place.  This vote is then appended to the next set of minutes.

At times, a director cannot attend a meeting. He or she may tell the president that he is voting for (or against) a particular issue that will be decided at the meeting. The board, fearing the consequences of displeasing this director, then adds his vote to the count. This is not a valid procedure.

Board meetings are for directors. Managers generally attend to provide information, present their report in person, and receive directions. However, managers’ attendance is strictly a board’s decision—not a manager’s prerogative.

In Ontario, owners may attend board meetings only with permission of the chair. This varies in other provinces. For instance, in British Columbia, owners may attend council [board] meetings as observers. 

Documents and Agenda

According to the Act, a notice of a board meeting with the agenda has to be sent to directors 10 days before each meeting. But this isn’t exactly realistic and most boards receive the notification package a few days before because dates for meetings are often scheduled a few months in advance or at the end of each meeting.

The usual documents accompanying this notice are the agenda, the minutes of the previous meeting, the latest financial statement, a manager’s report, and photocopies of bids when contracts are discussed, as well as correspondence addressed to the board.

The agenda is fairly standard and contains items such as: approval of the minutes of the previous board meeting, business arising from these minutes, question period and approval of the latest financial statement, business arising from this statement, manager’s report, other business (such as contracts, budget), and correspondence received and sent.

Can owners read the minutes? Yes, absolutely. Click here for Right of Access to Condo Records. Unfortunately, this is easier said than done: Being refused access to condo documents, such as board minutes, is one of the most frequent complaints made by this website's readers.

Condo Acts should actually require that boards post a report of each of their meetings summarizing their decisions and the rationale. This would increase transparency and accountability. It would also normalize owners' right to information.

Decisions Reached

When motions are moved, seconded, and voted upon, each board member has only one vote, including the president. A simple majority carries. The vote generally proceeds with a show of hands. However, secret ballots can be held when requested by a director.

A board member who believes that a decision is made without due diligence or in bad faith may request to have his or her objection or dissenting vote recorded in the minutes. This is actually important in the event of arbitration or a law suit or if owners requisition a meeting to vote directors out based on a board decision that lacked due diligence.

Once a decision is reached, a member who disagrees has to rally behind the board: This may not apply if the other directors acted in bad faith, such as refused to follow rules or took a decision that benefits some groups over others, or did not do due diligence, such as took a decision without proper documentation or a tendering process, or, yet, when a board votes to write an offensive letter to an owner who puts forth justifiable complaints. In such cases, a dissenting board member certainly should have his dissent recorded. Or that director may resign or yet requisition a meeting to inform owners or find another way of informing owners—which is not easy.

The fate of the one or two board members who justifiably disagree may not be a pleasant one. There have been cases of board members who make the life of a dissenting director very unpleasant, who go behind his back, who instruct the staff to refuse to give him usual services to which any owner has a right, and who may spread rumours about him or her. When it is the president who is the dissenting party, he or she has just about the same unpalatable options...!

One president had to sell his suite and move out because, after he resigned from an unethical board, the manager instructed the staff to be unpleasant to him and his wife; remaining board members would stare at them in the elevators and even openly laugh at them. Other residents who were trying to secure favours from the board joined in this maltreatment. The amazing end of this pathetic story is that he and his wife moved to another condo where they knew that the board was ethical. Eventually, he became the president of this condo... and lived happily thereafter... while the other condo suffered a series of material damages as a result of the lack of due diligence on the part of that board and the divisiveness among owners. Some sort of “poetic” justice!

For additional problems pertaining to boards, see letters in Issues With Boards of Directors.

Despite these problems, overall, having boards of directors who are owners run condos is still the best solution because owners are the best persons to represent their own interests.

However, boards' duties should be more specifically spelled out in the Condo Act; especially, the Act should provide more safeguards so that owners are better informed by their boards and so that these boards are more accountable to owners.

In other words, both owners and directors could use some help from the government to prevent problems of governance from occurring (click here for What Should Be Done to Improve Boards? A Condo Ombudsman would be especially useful.)

What Should Be Done to Improve Boards?

To begin with, the Condo Act has to tighten up the rules of who can become a director on condo boards. After all, condos are multi-million-dollar businesses, and the Act does not even require a background check to root out persons with criminal past. One can well imagine that, at least in theory, condo boards would be tempting positions for persons with fraud on their mind or in their past, or other proclivities that may be known to the police.

What would improve boards of directors' efficacy, ethics, and respects for owners' rights are:

  • Better government regulations, support, and enforcement--such as a Condo Ombudsman
  • Better understanding of condo rules, owners' rights, and financial issues by directors
  • Penalties to act as deterrents
  • Regulated management companies
  • Professional and licensed managers who are educated accordingly
  • More information given to owners about their rights and responsibilities

There is actually nothing inherently wrong with boards of directors that more oversight and better protection of owners would not cure. In fact, there is a lot of good with boards and this is a great civic commitment. They need more structure and institutional support. 

See also What Should Be Done to Improve the Management Situation. and Condo Political Action for Legislative Changes.

Other Questions About Directors

Is Being a Director Much Work?

It depends on the type and size of the condo and on the qualifications of the manager. Generally, directors attend one meeting a month. Preparing for and attending the meeting takes about three hours. That is all that is required of directors who are not officers.

The secretary may need 1-2 hours a month to do the minutes unless the manager is contracted to take them. The treasurer requires a couple of hours a week. The president needs to spend a minimum of 5-6 hours when there is a mature, ethical, and experienced manager who can do the planning as well as the day to day duties--and does not have conflicts of interest that could be costly to the condo.

But, with a less experienced manager, or a less conscientious one, presidents spend 10 to 15 hours a week and more when special projects are being researched and planned. (Click here for Problems of Conflicts of Interest, Accountability, and Qualifications). Again, a president’s hours are purely his or her own choice—nothing is set in stone. However, a canvassing of presidents has revealed that, on average, they spend 9 hours a week on their duties.

Is It an Interesting Position?

Being a board member is certainly interesting but only to the extent that each person on the board makes it so. There is a great deal to learn (about rules, the mechanics of the building, what contractors do, and legal issues) and this makes the work challenging.

It is a volunteer position. Studies have found that volunteering one’s time for a worthwhile cause is actually good for a person’s mental health.

It can, however, become unpleasant and stressful when colleagues on the board stand only for their vested interests or egos, are quarrelsome, aren’t interested in achieving anything, or are uninformed. It can also be darn right unpleasant when there is a lack of leadership and residents are “all over the map” making demands and refusing to act responsibly. 

The downside of being a director on a condo board is that one becomes a volunteer in one’s place of residence rather than in an outside agency. As a result, animosities often arise. Directors’ lives can become unpleasant in condos that have a lot of problems. And directors can also make some residents’ lives very unpleasant, indeed.

Overall, most problems, when they exist, arise because of a lack of proper communication. Boards who communicate effectively, respectfully, persuasively, and regularly with owners generally experience few, if any, problems.

Are Directors Paid?

Not generally because being a director is volunteer work. If a board wants to be remunerated, a by-law has to be enacted and voted at a meeting by a majority of owners of units in the condo. Such a by-law is valid for only three years and has to specify the remuneration level to prevent abuses.

Take-outs, dinners, and social occasions for board members paid by the condo also have to be set in a by-law. For instance, board members in some condos go to restaurants together with their spouses a few times a year... at the condo’s expense. So far, few dare to complain openly and it is surprising that auditors have not caught on more often, perhaps because "petty cash" is used for these occasions.

Much of the rewards one gets as a board member are intrinsic. That is, it’s a form of altruism and one feels psychologically rewarded for doing a good deed and contributing to the community. This does not mean that directors can’t get together with their spouses and enjoy great dinners—provided they pay for them.

Do Directors Have Privileges?

Being a director is a privilege and an honour. However, inasmuch as directors have access to confidential information and have a say in how their condo turns out, then these certainly are privileges that other owners do not have.

In some condos, abuses occur--often by the spouses of presidents or treasurers--and some are detailed in the new section on  Misuse of Funds and Fraud. Others are found in the letters in Readers Respond.

Examples of abuses:

  •  A president uses the boardroom to meet his business associates.
  • A treasurer has a room repainted by the condo’s painter and this goes on the invoice of a painting job that is ongoing.
  • A president uses the condo lawyer to go on a witch hunt against owners who may disagree wth him.
  • A board member uses the guest parking “because it’s easier” when he returns home from work (residents are not allowed to use visitors’ parking).
  • The president's spouse redesigns the lawn in front of their unit--even though it is a common element.
  • A treasurer has the superintendent come to his suite regularly and free of charge to change light bulbs, paint touch ups, wallpaper hanging, etc.
  • Another president's spouse builds an elevated deck in the common element backyard, which intrudes on the privacy of the neighbours.
  • A president has the security personnel tell him about the whereabouts and activities of some residents he particularly dislikes. This goes against privacy laws and is a misuse of the security cameras.

Owners' Rights and Responsibilities

In reality, the Condo Act fails to give sufficient rights to condo owners. As well, owners too often do not  benefit from the few rights they have because the Condo Act is self regulated.... In other words, no one oversees its functioning and no one helps owners whose rights are abused by managers, boards, and even condo lawyers.

The Condo Act specifies the following owners' rights, among many others:

  • to receive an annual budget and, in Ontario, a periodic reserve fund study;
  • to attend an AGM... but few owners attend... and, in too many condos, owners are not allowed to ask questions;
  • to access most condo records... but, in too many condos, this does not happen (see the next section);
  • to be represented by a board of directors who is accountable to the corporation. Yet, the letters sent by owners and even directors indicate that boards are too often derelict in their duties, lack transparency, and deprive owners (or some of them--the ones they don't like!) of many of their basic rights. 

More examples of owners' rights are provided throughout this website. But the writers of the letters posted in Readers Respond are very clear to the effect that owners do not actually have many rights and the rights they do have are too often not enforced. Owners are left without protection and recourse.

The second large issue is that owners do have responsibilities: Think of it--a condo is for most owners their main investment. Thus, it is also their main financial responsibility. However, condos are promoted and sold as a "hassle-free" environment and a "responsibility-free" lifestyle. Although it is true that a condo is far simpler to own and take care of than a detached home, it carries responsibilities and when these are not met, problems arise.

In other words, owners do have responsibilities and should not wait for a crisis to arise in their condo to do their duty. But, then again, it is often difficult for owners to exercise their responsibilities in condos where their basic rights are not upheld.

All in all, condo residents should be able to live in an environment that offers a quiet surrounding, dignity, a sense of purpose, and community. In these respects, much depends on residents’ civility as well as on boards’ and managers’ ethics, leadership, transparency, and the dignified way in which they carry out the business of leading the condo.

Please scroll down the next sections for a discussion of specific rights.

Right of Access to Condo Records

Owners have the right to see and obtain nearly all the corporation’s records with the exception of personal information, employees’ records, and ongoing litigation. Personal information is deleted before records are shown or given to an owner: This is particularly the case for minutes of board meetings.

Yet, 33% of the 2,081 letters (or 686 letters) received between July 2009 and the end of December 2012 are from owners who have been denied access to simple condo records to which they have the right or have been charged an exhorbitant fee. In addition, requests to see documents too often result in owners being subsequently mistreated by managers and boards--and even receiving threatening letters from condo lawyers.

Owners’ requests to view documents or to obtain copies should be accepted as the normal situation it is and the right it is. In too many cases, owners are treated as if their request was outrageous or, yet, it is taken as a personal insult that leads to open warfare. 

How To Obtain Documents

Owners wishing to examine a recent monthly financial statement, board minutes, or AGM minutes should simply write a request to view such documents in the office or obtain a photocopy.

Requests should first be addressed to managers. There may be a small fee for photocopying and manager’s time. Fees depend on number of pages. But fees should be reasonable and owners can object if a fee is unrealistically high.

If managers do not respond within 2 weeks, then the request should be made to the board, including a copy of the letter already sent to the manager. If another two weeks elapse without a reply, then another letter should follow stating the owner’s intent to bring the matter to a Small Claims Court (at least in Ontario).

The Ontario Condo Act clearly states that, when access to records is denied, the condo corporation has to pay a penalty of $500 to the owner.

As mentioned earlier, since first writing this website, many owners have complained about being denied access to documents, or being charged outrageous sums by a manager or a board. To read some of these letters, please click on Issues of Owners' Right to Information.

However, an owner who requests to see records dating back several years will impose a great deal of work on the manager. And it is not certain that a Small Claims Court judge will be as sympathetic to an owner’s cause in such a case. The cost for locating all this material, however, cannot be charged to the owner--the charge is only for photocopying.

Finally, it is difficult to predict how the Court will approach the case of an owner who returns for the 3rd or 4th time with a similar request within a year or two even if the owner has to keep returning because, in his or her condo, no information is ever posted. (In such situations, owners would be better off with a better board.)

As well, there is a possibility that the manager and/or the board may act vindictively after such a little Court excursion. And, at this point, there is nothing or no one responsible for protecting owners in this situation. (Click here for Condo Act Changes That Are Absolutely Necessary)

It might be more appropriate if a “repeat” owner requests to receive all monthly financials from now on, for instance. The manager simply prints out an additional copy each time—and each time at a reasonable cost to the owner. Or, preferably, these documents could be emailed at a small cost.

Indeed, with email so prevalent, requested documents could simply be sent as attachments. The cost of doing this should be minimal: a few seconds of an administrator’s time and no photocopying fees.

Right to Information

Apart from access to douments, unfortunately, right to information in general is not exactly enshrined in the Ontario Condo Act. It’s a theoretical rather than a real one because all depends on management and boards’ willingness to inform and, hence, to be accountable to owners. In contrast, in British Columbia, the Strata Act mandates that, at the very least, the “council [board] must inform owners of the minutes of all council meetings within 2 weeks of the meeting.”

Owners have to feel empowered by managers and boards, not helpless and left in ignorance about what is going on, as is too often done. There is too much secrecy toward condo owners and there is no reason for this. Keeping issues secret is certainly not part of boards of directors’ duties or managers’ role. Quite the opposite!

Owners who seek information are often treated as if they were trespassers. Yet, this is their home. They own the place!

Lack of information from boards of directors and managers is the most frequent specific complaint made by readers. It is a widespread problem. In addition, as noted in Readers Respond, lack of communication and transparency from boards of directors is also generally a red flag for a multitude of other problems. Also see What Is a Good Board? 

Indeed, the best boards and managers inform owners on a regular basis. For instance, some condos have passed a set of rules regarding the comportment of boards. One of these rules states that boards have to post a report after each monthly meeting explaining important decisions reached. This report can also be used to explain how residents can help improve the performance of their building or townhouse complex.

In a few condos, minutes of board meetings are posted on bulletin boards (minus personal information regarding staff and residents). In others, monthly financial statements are posted.

In several condos, boards or managers have websites that are updated regularly. Unfortunately, these websites are time consuming and, as a result, many are discontinued. Other boards, or presidents, publish informative newsletters.

When a sizeable proportion of residents do not speak or read English fluently, it is a gesture of civility and good business to find someone who can volunteer to occasionally translate important notices in a particular language.  When as many residents as possible have access to useful information, they are more likely to cooperate. The condo will function more smoothly and money may be saved.

The following are notices that can each be posted once or twice a year in order to provide guidance on:

  • energy saving, including water
  • preventing drain backups
  • recycling and green bins
  • preventing accidents
  • keeping parking spaces free of automotive fluids
  • bicycle use and storage
  • odour prevention
  • pet behaviour
  • danger from stuff thrown from balconies

Right to Notification for Entry into Unit

Right of notification for entry into unit is a right that is frequently violated in condos or is abused.

 

For instance, managers and superintendents do not have the right to inspect units before a status certificate is issued. And they do not have the right to inspect units to make sure that they are properly taken care of: This is none of their business and is an invasion of privacy--unless there is evidence that the safety of owners and the security of the building is at risk.

In other cases, fire inspections are carried out monthly in suites, plumbers enter suites to clean kitchen stacks several times a year, contractors come in to check out for balconies or sinks, etc. This is totally unwarranted and an invasion of privacy.

However, maintenance that is carried out on behalf of owners or that a condo is responsible to do requires that contractors enter units. Managers generally announce these services well over a week ahead of time by posting notices that are visible and accessible to all. Then, as the work progresses from floor to floor, managers post notices on each floor to let residents know that their turn has arrived.

Fan coil maintenance will take place on floors 10 through 14 on Wednesday through Friday. Please remove anything that is preventing access.

 

There are 5 important points that residents need to keep in mind:

  • Certain services, such as twice-yearly fan coil maintenance, require that residents remove furniture, TV sets, boxes, children’s toys, as well as plants from the area. Contractors are not paid to become movers. Even if they did move objects, it would cost much more money and delay the schedule for other residents. It is residents’ responsibility to clear out the area that will be serviced.  
  • Maintenance contractors are not allowed to enter suites alone when residents are not home. Rather, managers, superintendents, janitors, or concierge, will accompany contractors and remain with them for the duration of the service.
  • If a resident does not feel comfortable being left alone with a contractor, she can mention this to the manager ahead of time and a staff person will accompany the contractor.
  • The master key that allows access to all units is never given or loaned to a contractor. In fact, even the regular staff have access to this key only with manager’s or board’s permission. A sign sheet is a good idea so that managers can track the movement of the key.
  • Staff who enter a suite generally leave a note behind; this note gives the time and the reason for entry.
  • There are instances when staff may have to enter a suite without proper notification. This occurs when there is an emergency such as fire, water escape, or there is reason to believe that a resident is experiencing a health problem.

Please go into the section Other Important Residents' Rights below, in Right to Security, to read about some problems related to entry into units that arise and present a security issue.

What Are Owners’ Responsibilities?

The success of a condo largely depends on the level of civility and cooperation of its residents, particularly resident owners. There is agreement among condo experts that residents’ civility constitutes an asset to a condo and can raise its market value. Indeed, potential owners often seek out condos where residents are reputed or observed to be “nice,” polite, and “well behaved.”

In general, owners and residents should:

respect the right of other residents to live in a quiet and peaceful environment

  • maintain their exclusive-use common elements in good order 
  • do their part in keeping the building and grounds clean and in good working order; in practical terms, this means that residents should not litter, spill food and liquids in corridors or elevators, or use their balconies as storage areas
  • learn and follow the rules of their condo
  • cooperate with management’s reasonable requests
  • attend their AGMs and do so in a civil way even when disagreements arise. Regular attendance at AGMs is not only functional for the condo itself but it is in the best interest of owners. Indeed, where else can owners learn what is going on in their condo (which is perhaps their biggest investment), especially when a board does not communicate?
  • provide filled proxy forms when not able to attend AGMs in person (for info on proxies, click here into Owners' Meetings and Voting)
  • elect conscientious boards of directors 
  • consider becoming a board member with a view of helping their community
  • treat staff with respect
  • save energy 
  • recycle and participate in green bin programs where available

What Are Non-Resident Owners’ Rights and Responsibilities?

In most condos, tenants occupy 10% to 70% of the units, which means that condos are 90% to 30% owner occupied. In Ontario, non-resident owners probably constitute on average at least 25% of all condo owners. In some areas, particularly downtown Toronto and Vancouver, they constitute over 50% of condo owners.

Right to Information

First, non-resident owners have the same right to information about their property as have resident owners. Here, however, a problem arises that requires these owners’ cooperation:

Some condos maintain a confidential email list of non-resident owners and they are sent the same important information that is posted on the property’s bulletin boards. Yet, only a small proportion of non-resident owners avail themselves of this service. They rarely send in their email address, even if requested to do so. As a result, most non-resident owners are not well informed about their property.

Right  to Attend Meetings

Second, non-resident owners have equal rights of attendance at the AGM and requisitioned meetings. Yet, very few attend. And it is even difficult to obtain a proxy vote from them. In buildings with less than 70% of resident owners, requisitioning a meeting becomes extremely difficult so that problematic situations cannot be remedied. It is even difficult to obtain a quorum for the AGM in such buildings. (Click here for Owners’ Meetings and Voting)

Consequences of Non-Involvement

Therefore, when a condo has a majority of owners who are non-resident or week-enders, this condo has a much greater risk of experiencing problems of unethical boards and managers and, down the road, financial problems including very high fees and  building deterioration.

As an illustration of non-resident owners' lack of involvement in their property, of the 1,144 letters received by this website between July 2009 and the end of December 2011, only 5 were from a non-resident owner: This is less than 0.5% of all letters!

The above numbers probably mean that non-resident owners are not as likely to notice problems arising  in their condos as do resident owners. This also means that, in condos where only a small proportion of owners are resident, these owners have a far greater burden of responsibilities and problems that isolate them than in condos where a majority of owners live there. 

As well, it should be pointed out that condos with high levels of tenancy generally experience many more problems related to noise, pets, cleanliness, and parking. These problems are even more likely when owners locate tenants through an agent. However, some diligent owners choose their own tenants and do so carefully and follow-up before renewing their lease.

The former president of an older condo that is deteriorating because of a lack of resources to make necessary repairs lamented that,

“non-resident owners don’t care because they’ll never live here; they get their rent money and they don’t want to allow boards to increase fees for repairs and maintenance. The place is turning into a slum because each time a brave board tries to raise fees, these invisible owners show up and throw the board out. So now all they get are bad boards and they deserve them but the rest of us are stuck here and don’t deserve this, especially as it has become harder to sell our units because who wants to live here?”

He wanted to seek a Court order to have his building placed under administrative supervision but he couldn’t afford the legal fees. There are many condos in this deteriorating situation, both in Ontario and Quebec.

Residents with Disabilities/Challenges

Disabilities are covered under the Ontario Human Rights Code and equivalent codes in other provinces. Therefore, persons with disabilities have to be provided with easy access to their floor, parking area, facilities, and the street.

When there are steps from the street (or the outside) to the lobby, a ramp has to be built. Fortunately, most ground floors are now at street level. Heavy doors in buildings present a barrier for persons in wheelchairs or with a disability that makes walking difficult or opening a door impossible.

Heavy, fire-proof doors are difficult even for a healthy person. In one condo, the adopted policy is that persons who have difficulty opening a door because of a health issue or a challenge identify themselves to the concierge. After, any concierge at the desk always opens both doors for them. The concierge is also instructed to open doors for mothers with infants and strollers as well as pregnant women. This is called “the human touch” approach and it works so well that everyone in the lobby helps designated persons.

Another solution is to install an automatic door opener for either the front or the back entrance; such doors leading to parking areas may also be necessary. These doors can have a push button or a card reader and a “fob” can be sold to residents who need to use the automatic system. Or a combination of both, a push button for the outside door, and a card or fob for the interior door. Or, still, a button can be pressed by the person at the security desk. (Click here for What’s a Fob? A Card Reader?)

These mechanisms can be expensive but not overwhelmingly so. They also require somewhat more maintenance.

One has to be cautious to install a system that will not allow anyone off the street to “piggy back” behind residents. These doors take more time to close than regular ones. In such buildings, the concierge/security staff has to be even more vigilant--not an easy task or even one that is willingly accepted.

When observing from the sidewalk, one can at times see young people, mainly male, loitering outside waiting for the concierge to step away from the desk; then, they walk behind the next resident who opens the automatic door. Once inside, they walk corridors and check suite doors that may be left unlocked. Or they go into garages and check out cars. This is a security issue that has to be kept in mind.

Other Important Residents’ Rights

The four rights discussed here are rights to a smoke-free environment; safety; security; and right to social activities.

Right to a Smoke-Free Environment

The Ontario Human Rights Code takes precedence. Recently, a B.C. Human Rights Tribunal ruled that condo corporations have the duty to do act when a resident is affected by second-hand smoke. For instance, when smoke from another resident filters into the corridors and/or into another resident's suite and that resident is sensitive to smoke, the board has to step in. Repairs to the common elements may be necessary or requesting that the smoker take precautions against the smoke leaving his or her unit may also be necessary.

However, it is likely that recourse to the Tribunal is legitimate and will bear results mainly if the victims of the second-hand smoke are allergic to smoke and/or have other health problems or disabilities that make the smoke particularly bad for their health. Medical evidence may be requested.

It is yet unknown at this point to what extent a condo corporation is responsible for smoke that filters and simply inconveniences neighbours. However, there is plenty of research evidence to the effect that second-hand smoke is detrimental to health in general, particularly for small children, and this may be sufficient. Contacting the Ontario Human Rights Commission would be imperative.

Right to Safety

Boards of directors, through managers and superintendents, have to eliminate anything that people can bump into (such as overhangs at head level) or that can make them trip or slip and fall.

This is one of the reasons why storage of items behind and next to cars in garages is generally prohibited. Similarly, floors have to be examined so that they do not have slippery surfaces or objects such as food stuff (the famous banana peel, comes to mind here). Stairwells have to be carefully scrutinized on a daily basis. In cold weather, walkways have to be treated with sand or calcium (salt is generally cheaper, unfortunately). Loose stones have to be attended to.

Fire alarm testing has to occur on a quarterly basis in addition to the larger annual one. At that point, smoke, fire and carbon monoxide detectors are inspected. Fire alarms have to be clearly heard in all suites and common elements.

Smoke Alarms

Residents are at times irritated at the alarm and disconnect speakers and smoke detectors. Some even cut the electrical wires. This contravenes fire code regulations. But a fire inspection will reveal these problems and the resident will have to pay for their immediate reinstallation. Such actions are not only illegal but may place many lives in danger.

Elevators have to be periodically inspected and recertified. Finally, there is a standard of minimum lighting that is required in all corridors, stairwells, and parking areas.

Right to Security

The basic right to security first rests on the fact that no one should be able to enter a unit without the resident's consent or without prior notification from management for necessary repairs or services.

Several owners have written about thieves entering their unit while away or at work (something which is generally an inside job); of finding a security person or other personnel in their unit with no rationale for being there; of waking up in the middle of the night to find the security person in their unit; of owners who return from abroad to find that someone has been using their unit during their absence--and someone else is getting a "rent"!

On another level, it is difficult to know to what extent security cameras that are linked to monitors at the concierge desk are effective deterrents. At the very least, their visibility makes life more complicated for someone who is intent on committing a crime.

However, in the event that the concierge happens to be looking at the monitors, he or she could prevent or stop an assault on a person. This is why such personnel should be trained to glance at the monitors regularly.

But the best way to keep residents secure and safe from outside intrusion is to prevent non-residents from walking in.

Keys that can be readily duplicated for common doors create a security problem: Residents can make copies and pass them to friends. Card readers are far better because a manager can keep a record of the number of fobs given to each resident and cancel them upon their moving out or their losing a fob. 

Security System in Units

High-rise condos are generally equipped with a security system for access to suites. This is a small control panel inside a suite, right next to the entry door. Push buttons allow residents to secure their suite when they leave and return. However a personal code is required to “disarm” it. Most of the time, a resident who moves out does not give the code to the new resident. As a result, the system is under-utilized.

 

Security System

This system is designed to alert the security desk if someone breaks in. This can’t happen when the system is not “armed” by the resident. The worst part is that residents who don’t know how to change the code when they move in become frustrated when they inadvertently trigger the alarm in their suite and cannot stop it. Some then end up cutting the wires.

As a result, in some buildings, the entire system may fail and none of the suites are protected: The concierge can no longer hear the alarm system if someone breaks into a suite or, yet, he hears it all the time and cannot know when a real problem arises.

This is a serious issue of liability and a condo corporation could be sued if someone gained entry into a suite and hurt the occupants or stole personal possessions. When a resident “arms” her suite’s security system, the expectation is that the system is connected to the security desk and the staff will react if an intruder forces his way in and the alarm rings within the suite and at the desk.

When an inspection reveals that some suites have disabled their system and, as a result, the building’s entire system is equally disabled, then those owners should be asked to have their system repaired immediately. Otherwise, the condo should do it for them and the charge would be added to their common elements fees if they do not reimburse the condo shortly thereafter.

Most residents are not aware of this problem. In fact, most boards of directors do not understand their obligations in this respect.

Right to Social Activities and Parties?

This isn't a right: There is nothing in the Ontario Condo Act about owners and residents of condos having a right to be entertained by the condo.

In fact, the Condo Act does not allow condo funds to be used for parties for residents—even though no one generally objects.

One line of thinking, agreed upon by some legal experts but disputed by others, is that a condo party is an investment in community building and is a boost to morale. True. In fact, a large proportion of condos openly include a “social activities” category in their budget.

This said, a condo should not spend too much on parties and not too often either because owners who do not wish to attend (and indirectly pay via fees) may not agree with this perspective.  At any rate, condo boards should be aware of the potentially objectionable aspect of giving parties at corporation expense.

A good idea might be to ask residents to contribute a toonie when they register for a party.

Many condos have Social Activities Committees. Boards have to carefully scrutinize these activities for potential liabilities if they involve the use of common elements such as the party room. Boards should probably not give condo money to committees.

As well, if a director or the management is involved in planning these activities, including outings to casinos or racetracks or plays, the board should establish that the bus company has a good record and is properly insured.

Condo parties, whether organized by boards or committees, lead to the issue of alcoholic beverages.

Hosts can be liable when a guest drinks too much and is involved in an accident after attending their party or going to their bar.

A safer alternative for condo parties may be to give two tokens to each adult resident who attends and who wishes to drink alcoholic beverages. This limits the number of drinks to two per person. “Bring-your-own” is no longer a good idea under the circumstances.

So far, there are no directives concerning a resident who throws a party in the party room, allows guests to drink to excess, and a guest has an accident. The resident is liable if the Court reasons that the party room becomes an extension of a resident’s home. But is the condo corporation liable? This is something to think about.

Examples of Cost-Free Activities

The following is a list of activities garnered from various dedicated managers.

  • One manager who has many older residents, some of whom live alone, holds a weekly take-out lunch. Residents happily pay their share and there is no cost to the condo.
  • Another manager has activities for children. (Click here for Noise from Children Playing and Running)
  • A manager has transformed the corner of a large interior pool deck for the use of a professional masseuse. This masseuse comes twice weekly and pays a small rent to the condo. (A by-law has been passed to this effect.)
  • Another manager organizes monthly bingos in the party room. A small entry fee is required and residents buy cards once inside. There is no cost to the condo.
  • In another building, tennis tournaments are organized at a nearby court.
  • In a townhouse development attached to a high-rise, mothers with infants have a weekly “mothers and tots” hour in the party room. They socialize while sharing a potluck lunch.
  • In a condo high rise where many seniors with walking difficulties reside, a director opens the long party room each afternoon so that they can take safe walks in each other’s company. This is particularly helpful during winter time.
  • Yoga, meditation, and pilates classes are offered in some buildings but there is often a problem of declining attendance as the weeks go by.

Do Residents Have the Right to Use Their Unit for Business?

Not generally. Most residential condos have a clause in their declaration stating that the building is strictly residential. Or, yet, units are referred to as residential units. (Click here for What’s a Condo Declaration?)

Therefore, residents do not have the right to use their unit as an office or a small factory for business purposes. However, nowadays, with cell phones and computers, most people continue their professional activities when they return home. That’s totally acceptable and disturbs no one.

What is definitely prohibited is for residents to have business associates, employees, clients, or patients in the premises as well as use a great deal of office equipment, sewing equipment, storing supplies, and electricity as well as water for business purposes. This could involve doing laundry for others, operating a small catering business that requires cooking and refrigeration, a professional office such as a psychiatric or a legal office.

It is boards’ duty to terminate such arrangements. After due notices have been served and failed, a board could apply for a Court order to comply and the residents in question would likely have to pay Court fees as well.

Rights and Responsibilities Concerning Pets

The declaration or rules of a condo may prohibit pets, or regulate their type, number, and size. A prohibition on pets contained in the declaration will be upheld by Courts, but such a total prohibition in the rules may not be valid. However, rules can state the number of pets allowed as well as their weight. This is why potential owners who have pets should read the declaration and rules.

But even if dogs are prohibited by a declaration, this does not apply to dogs assisting persons with disabilities or illness.

Moving into a condo with 2 or 3 dogs when the limit is one—a reasonable limit, particularly in a high rise—and using the often-heard excuse of “my real estate agent said it was permitted” is not valid. A letter from the manager should follow requesting that only one dog remain.

Breeding pets is not allowed. But if puppies are born, they may stay for a reasonable period of nursing. If this is repeated, however, this will no longer be an accident. (Click here for Pets in General)

Puppies

Large dogs present an unfair situation and a safety risk. Indeed, large dogs confined to a small unit will not have enough space in which to exercise. This constitutes a form of abuse. As well, other residents are more likely to be afraid of a big than a small dog. Second, lawyers have correctly argued that large dogs can present a safety risk in stairwells and corridors during a fire alarm.

All dogs have to be on a leash everywhere. Any mess they make is owners’ responsibility.

Dogs are often heard barking loudly in condo corridors or from adjacent suites. This situation should not be tolerated because it prevents residents from peacefully enjoying their living area and common elements.

Such pets may be removed after written warnings. Dog owners should not feel personally offended if neighbours complain about barking. Residents are not allowed to create undue noise: Neither should dogs be! (Click here for Barking Dogs)

Under no circumstances are dangerous pets, such as venomous snakes and other fancy venomous critters, allowed in a residential building.

Spider

Generally, guests do not bring pets in a condo building.

Managers and Management Companies

This chapter on managers and management companies has been totally revamped as a result of the complaints, suggestions, and concerns sent by readers. These letters are analyzed in Readers Respond where many are also posted in several subsections.

Most managers, administrators, and assistant managers are affiliated with a management company. That is, although working for one or several condos, they are in reality employees of a management company, from which they receive a salary as well as benefits. In turn, the company has a contract with the condo corporation and receives a monthly fee.

This structure of employment has advantages but it also gives rise to several problems. These will be discussed later.

Managing condos is a challenging, interesting, and very worthwhile occupation. Managers’ role is multiple, varied, and requires the development of a wide range of skills. 

But, as we will see later, too many managers and management companies fail in their duties to the condo corporation and to individual owners. Furthermore, owners have no recourse when this occurs because the Condo Act is ineffective in protecting owners.

First, let's ask:

What Are Managers' Duties?

(a) To the condo

Managers are responsible for the maintenance and repairs of their buildings, and have to ensure that all systems are in working order. They supervise staff, do paper work, have the bookkeeping done by their management office, and see to it that owners pay their condo fees in a timely fashion.

Managers need to have good organizational and people skills.   Managers attend to owners' relevant needs. They are in theory also supposed to advise the board, plan for future maintenance, help find appropriate contractors for maintenance and repairs and seek bids. They have reserve fund studies carried out, plan AGMs, and may prepare the agenda for board meetings.

However, in practice, not all managers accomplish these duties. The less experienced managers as well as those who are not much invested in their work or have little knowledge do far less. As a result, board members, usually presidents, have to "pick up the slack," or else problems go unattended: When board members are themselves inexperienced or uninvolved, condos may be in double jeopardy--and this occurs more often than acknowledged.

In contrast, experienced managers as well as those who are truly interested in learning and enjoy the challenge of finding solutions to problems are a blessing for condos. They find ways of saving energy and money, are responsive to ethical boards’ suggestions, help inexperienced boards, and communicate with staff and residents effectively.

Managers’ usual workload may include one large condo or 2 to 5 condos depending on condo size. It is rare that a condo has one full-time manager on site 40 hours a week, especially when there is a superintendent and concierge on staff. Therefore, boards should expect value-added services from managers who have only one condo with less than 350 suites: They have more time than others managers and this one-site system is far more expensive.

With some management companies, an administrator is the equivalent of a manager. But in many other companies, an administrator or assistant manager requires, in theory, fewer qualifications. However, the reality is that many administrators are actually as competent as are many managers.  When on site in a condo, they often do much the same work as a site manager does and their role also varies accordingly.

Administration

Generally, when a building has an administrator rather than a manager, an experienced manager comes on site several hours a week to attend to building maintenance and contractors. This manager also has the role of planning for the future, is in touch with the board of directors, and may attend board meetings.

(b) To individual residents

Managers or administrators are the persons residents go to with requests for repairs to common elements, especially for exclusive-use common elements, such as their suite door, lock, security system, their heating or air conditioning system with noise problems, smoke that gets into their suite, dogs that pee on the corridor’s carpet, lost keys, etc.

Some condos have a high turnover of office staff because too many residents complain about so many things and are so uncooperative that managers or administrators become demoralized. As well, they are left with little time during which to carry out their regular duties. 

What Is It that Managers Should Not Do?

This section has been added because too many letters have been received on the following issues.

Managers and management companies

  • should not prevent owners from contacting the board of directors;
  • should not refuse owners' requests to see board minutes, AGM minutes, financial statements, etc;
  • should not charge fees to just show condo documents to owners;
  • should not impose special fees to punish owners who don't follow rules (unless a by-law has been passed and I am not sure that this is permissible under the Condo Act);
  • should not demand to inspect a suite before issueing a status certificate (suites are private);
  • should not sign cheques to themselves;
  • should not refuse to do repairs for damage caused by common elements, such as water leakages;
  • should not refuse to investigate noise complaints and ignore them;
  • should not talk or gossip against some residents with other residents;
  • should not side with boards who are engaging in unethical practices.

What Are Management Companies' Duties?

In general, employees at the head office of a management company do all the bookkeeping, financial statements, status certificates, emergency coverage after hours and during weekends and holidays.  Head office also provides a replacement when managers go on vacation or are ill.

Certain management companies are structured in such a way that they use few site managers.  Instead, assistants and administrators tend to office hours and an experienced district manager, responsible for 5 to 10 condos, spends several hours weekly at each condo to do the planning as well as supervision of maintenance and repairs.

One company uses a computer system: The site assistant enters all invoices and work orders, addresses, security reports, and resident requests on the computer. District managers have access to this material from other condos in their portfolio and from their head office. In theory, these managers are experienced, knowledgeable, able to analyze situations and make recommendations to the board. This may well be the pattern of the future—especially if the supply of competent and experienced managers does not catch up with demand.

Other managers work independently and do not belong to a management company or have formed their own small company. They then work for one to three condos. They may outsource the bookkeeping to an accounting firm or a management company. They may work from their home or the condo itself and they have little overhead, which is financially advantageous for a condo. This can be a great situation when these independent managers are highly competent because they are more focussed on their one or two condos. But if they are ill or take vacations or additional condos, complications can emerge because they may have recourse to totally inexperienced persons to replace them, even if temporarily.

Which is the Best System?

No system of management is the best currently. What counts are the qualifications and experience of the personnel, their desire to learn, dedication, and ethics. Some condo boards “swear” by a given management company because they have had wonderful managers from this company or, yet, a superb district manager. But another condo in the same area has had only bad experiences with managers from the same company: The president says, “I’ll never deal with them again — they are the worst.” (Click here for What Should Be Done to Improve the Management Situation?)

In a nutshell, the quality of site managers or administrators constitutes about 75% of the degree of satisfaction that a board of directors and owners will have regarding a management company or system of management.

Townhouse developments that are not linked to a high-rise condominium often have difficulties with managerial assistance. One reason is that they rarely have an office or manager on site. As a result, residents and boards may have difficulty contacting them. As well, some of these managers have many more condos to attend to. These issues are discussed in Factors to Consider when Buying a Condo, section on townhouses.

For further information, a section appears at the end of this chapter to highlight problems that occur as a result of incompetent and inexperienced managers: please go to Examples of Specific Management Problems that Arise (below).

Since this website has been posted, countless letters about incompetent managers have been received from owners, directors, and competent managers. To read these letters, please click here on Issues with Management Companies and Managers.

 

Problems of Conflicts of Interest, Accountability, and Qualifications

The problems with the management industry are threefold: the issue of allegiance and conflict of interest;  the issue of accountability to owners/corporation rather than just to boards; the lack of expertise and training of managers and administrators. The first two issues are rarely discussed but are very prominent in the letters received. Therefore, we begin with these.

Problems of Conflicts of Interest

There are two sorts of potential conflict of interest on the part of managers.

The first stems from the structure and ethical culture of management companies. Indeed, most managers and administrators who work in condos owe their allegiance to the management company rather than to the condo corporation they work for. They are in reality accountable to their company first and secondarily to the board of directors...and, far behind, to the corporation and owners at large.

In itself, this represents a conflict of interest. Let's explain this situation: Boards are in charge of condos and, as such, are the employers and the supervisors of the management company. In fact, they generally hire this company. However, as we see in the chapter on Boards of Directors, and particularly in Readers Respond, not all is well in the domain of boards.

A few managers have themselves written that their management company always sides with boards of directors, no matter what. Why? Because companies value their contract or "account" above all and want to keep the condo. This is a question of money. Going against a board's or a president's decision--even when wrong--might jeopardize the contract.

Thus, it frequently happens that the interests of owners/corporation clash with those of an inexperienced or unethical board. In such cases, the manager is more likely to side with the board, usually at the urging of her management company. Hence, owners in such situations have no recourse because both boards and managers are unreliable.

For instance, some letters describe managers who attempted to resolve a situation but were overruled by an unethical president or an ignorant board. Upon consulting with her company, the manager is told to do as the president said.

This being said, far more boards whose managers have severe problems of incompetence, lack of ethics, dishonesty, and even fraud and  kickbacks send letters than manaagers do about boards. Further, while 79% of the letters received since July 2009 point to problems caused by managers, 63% do about boards--although there is a 50% overlap. It does seem that there are more problems of conflict of interest and dishonesty among managers and management companies than among boards.

The second type of conflict of interest resides when contractors hired to service, maintain, and repair the various systems in a condo building are related to the manager or the management company directly or indirectly. This results in maintenance and repairs being carried out that are not necessary; in invoices that are padded; in contracts awarded without a bidding process; fraud and kickbacks--all of which probably costs annually tens of millions of dollars to condo owners in Ontario. For more on this widespread problem, please consult readers' letters in Issues of Fraud, Kickbacks and Conflict of Interest.

Problems of Accountability to Corporation

This problem has already been partly described above. It stems from the conflict that exists between boards' interests and decisions and the good of the entire corporation. 

Overall, the analysis of the letters showed quite clearly that problems with managers in condos tend to be more frequent with  boards who are inexperienced, or unethical, or not hands-on. Such boards are the least likely to make wise decisions and to properly supervise their managers for the good of the corporation. They are also the most likely to tolerate a manager's irresponsibility, lack of accountability, disrespect for owners, and conflicts of interest.

In contrast, an ethical, experienced, and hands-on board or president will not tolerate any nonsense and will see to it that a manager and the company do their job. Even with an inexperienced, and incompetent, and even dishonest manager, such good boards can well keep their condo in good condition.

Problems of Inexperience and Lack of Qualifications

This is the problem which is the most widely discussed. It is the most visible whereas the above problems tend to be hidden.

Many veterans in management as well as other experts agree that there is a crisis in the management industry: In part, it is a question of supply and demand. Too many new condos have been built within a very short time while too few competent and experienced managers are available. As well, it is an issue of lack of licensing and training. (Click here for What Should Be Done to Improve the Management Situation)

Currently, some companies cannot meet the demand for competent managers and are honest about it. They may, instead, offer the services of an assistant manager and this may work out well. But other companies hire managers who have absolutely no experience.  Still other companies even go so far as hiring managers or assistant managers who have been fired from a previous job or received poor references. Such persons may even be sent to condos that are in deep trouble.

These may be older condos that have under-funded reserves, or no reserves at all, or have debts and need countless repairs and replacements. Owners may not be financially secure nor well informed. These condos may be located in a difficult neighbourhood and have multiple problems that would need very experienced managers. Yet, they do not get them. (For info on providing support for management companies that have distressed condos, click here into What Should Be Done to Improve the Management Situation)

What happens when condos in general receive an untrained manager? It may take two years for a new manager to acquire enough experience and knowledge to do a reasonable job. This length of time is detrimental to condos. Inexperienced managers do not even know where to start because they are so far behind.

In the large correspondence received, only two owners did report that a management company had resigned in the face of a board's irresponsible decisions. As well, some directors also wrote to mention that their manager had pointed out potential problems in their decisions; because these managers were trustworty and knowledgeable, the board listened to them.

For further information, a section follows which highlight problems that occur as a result of incompetent and inexperienced managers.

Since this website has been posted, countless letters of complaint about incompetent managers have been received from owners, directors, and competent managers. To read these letters, please click here on Issues with Management Companies and Managers.

Examples of Specific Management Problems That Arise

Managers who lack experience and qualifications cause a great deal of problems for condos, their owners, as well as for the reputation of competent managers.

Problems for Condos

  • Poor record keeping. For instance, invoices cannot be found; new owners and tenants are not properly registered; minutes of board meetings go missing; financial statements are late; contracts are misplaced; no list of contractors exists; deadlines for contract renewals are not kept so that boards of directors barely have the time to study quotes; status certificates are not updated or are simply not given.
  • Condos fees may not be paid on time or collected. Rental fees for lockers, for instance, may not be collected for months, so that condos lose money.
  • Contractors may be called to solve problems that better trained managers would be able to solve with the help of superintendents. This is costly for condos because these contractors have to be paid. (Click here for Misuse of Funds and Fraud)
  • Various technical systems are not maintained because contracts are not renewed on time, contractors not paid, or yet managers may not even know that some systems exist.
  • As well, systems may fail sooner than normal because of lack of maintenance or improper understanding of how they work.
  • Or else, contractors may be constantly called in because neither the manager nor her/his staff can deal with even the tiniest of problems.
  • Other staff, such as janitors, may not be supervised and therefore may not do what they should. In other instances, they are allowed to do whatever they want... and very little of anything. 

  • The problems of conflicts of interest, fraud, and kickbacks are discussed in other chapters.

Problems for Owners

  • Rules may not be enforced. Managers and boards may themselves invent rules as they go or enforce only those that please them.
  • Fees may go up unnecessarily because of unwarranted expenditures.
  • Budgets and annual general meetings are not prepared in a timely fashion.
  • Owners may be refused access to condo documents and boards.
  • Residents do not receive information that could help them save energy, prevent them from causing damage to pipes or drains, prevent injuries. Energy saving initiatives undertaken under a previous management may no longer be carried out, which can have long-term consequences for budgets and owners’ fees.

  • It should be added that problems of lack of proper conduct towards owners and residents also abound: rudeness, refusal to follow up on owners' legitimate problems, and so on, abound.

Problems for Competent Managers

The status and reputation of competent and experienced managers is negatively affected by the lack of qualifications of too many other managers and by the unprofessional way in which some companies deal with condos.

  • These qualified managers would like to be respected as professionals but the structure and standards of the entire industry works against this. As a result, their status is not as high as it should be and they are not taken as seriously as they would otherwise be.
  • Some feel very conflicted when they hear that boards justifiably complain about unqualified co-workers. Some managers surreptitiously try to “make it up” to condos by helping with suggestions, even though they are not paid for this. Some change companies in the hope of being with more competent persons.

Gift Package

  • In turn, the high visibility of incompetent managers with unprofessional behaviours means that educated young persons seeking a worthwhile occupation with a good social status do not choose to go into management, even if this type of work appeals to them.
  • This certainly does not help increase the supply of competent managers. Indeed, a solid mass of competent managers would see to it that the companies that hire them become more ethical, qualified, and accountable.

Problems of Management Company Turnover 

Another serious problem occurs when condo corporations change to another management company. You would think that the old and the new managers would meet so that there is a turnover of knowledge, wouldn’t you? Actually, this may not happen. All that may be turned over are those documents that are generally kept at head offices.

However, this lack of transmission of knowledge may not present much of a problem when the new administrator or manager

  • is experienced or well trained: he or she will then know what to look for;
  • is willing to ask questions to the board in order to understand what has been achieved in the past and what was being planned;
  • is mature enough to realize what he or she still has to learn;
  • and is backed up by a management company with a policy of accountability to their condos’ boards of directors and corporation.

Unfortunately, as seen above, what condos too often get is an inexperienced person who needs a great deal of training and does not even know where to begin. Or yet, they get a manager who has been "kicked out" of another condo for incompetence or unethical practices.

In contrast, competent managers, upon hearing that they will be transferred to another condo, make it their duty to visit the building or townhouses on their own time and seek information from the manager in charge. (This should actually be a management company policy.) At times, it is the outgoing manager who refuses to help the incoming one because of anger at losing the condo contract.

These same mature managers meet the staff and board president before, ask questions, and begin planning.

Another problem arises when a management company takes over a condo that has already achieved a lot and behaves as if this condo was totally new and had never done a thing before.

When this happens, the new management company may bring in all manners of new forms, notices, and standards that end up confusing everyone because the condo was already very experienced. It is actually surprising how often this happens. The new manager may shrug her/his shoulders and say, "This was before my time," as if the past does not count and proceeds to reinvent the proverbial wheels. Very bad for business! Much time is wasted.

Managers and management companies are paid to adapt to a condo’s situation, to repair it if it is failing, but to continue in its standards when it is successful. They are not paid for the building to be turned upside down to adapt to them. Unfortunately, in times of scare supply and high demand, condos do not have much of a choice and have to put up with a great deal of incompetence.

What Should Be Done to Improve the Management Situation?

Management should be dragged into the 21st century era of professionalism and credentials. Management has to become the real profession that it deserves to be (see last section below).

  • Colleges and universities should offer degrees in property management. This would provide a more systematic education. Such degrees or diplomas could take place within faculties of administration or even business schools.

Diploma

  • However, seasoned managers with years of experience and who are extremely knowledgeable should receive credits. After a meeting with an accrediting board, these highly qualified persons should receive an accreditation and an equivalency diploma or degree. Otherwise, the condo industry would lose some of its best persons.
  • This education would include a “stage” or internships during which students would work in various types of condos (and apartment buildings) under the supervision of a professor and experienced managers. The model of faculties of education, nursing, and social work can be considered in these respects.
  • A professional group should exist that would accredit managers, as is the case for nurses or social workers, under an appropriate government ministry’s jurisdiction.
  • After obtaining a diploma or a degree, graduates would begin paid employment as assistant managers and receive proper supervision from an accredited management company. They would become full managers after a few years of experience.

Management companies should be regulated (see below).

  • Mandatory evaluations of managers and management companies should be carried out yearly by boards of directors with the understanding that companies are bound to meet reasonable standards and have to make an effort to improve a deficient situation.
  • A special independent Condo Office (independent from interest groups), or a Condo Ombudsman, should receive and enforce these evaluations. As well, the Office would support competent managers who encounter difficult problems in a condo.

Regulate the Management Industry

Indeed, a large source of problems for owners in Ontario and other provinces resides in the lack of regulation and licensing of the management industry. As things stand, anyone can start a management company and anyone can become a manager—and, often, anyone does...!

While many management companies, both small and large, are very competent, others lack competence and even integrity. Management companies should meet certain government standards and should be regulated by the Ministry of Consumer Affairs. Efforts are made in this direction by groups of management companies themselves but they have no authority in setting and enforcing standards. They are voluntary groups that, in effect, can easily be derailed by conflicts of interest from within the industry.

Professionalize Managers

Currently, there are many avenues that lead to becoming a condo manager or administrator but none involves a commensurate education or professional training resulting in a degree.

At times, management companies turn to office staff who may be qualified in accounting and general record keeping, and promote them to the management of one or more condo buildings. Another avenue taken consists in management companies transforming superintendents into managers or administrators. Yet another avenue sees concierge staff become managers.

There is nothing wrong with promoting persons or with persons changing their line of work. Quite the contrary. However, what is wrong here is that this occurs without the necessary education and training. And condos pay the price.

As well, on-site “training” is usually detrimental to condos because it is not backed up by management companies. In fact, some companies discourage and downplay the efforts of conscientious boards who try to train inexperienced managers.

Let’s think of it this way: Hospitals do not transform janitors or secretaries into nursing staff! If a superintendent wants to become a nurse or an assistant nurse, he returns to college for a proper term of education and training.

Similarly, secretaries do not become instant business managers: They return to college to acquire the necessary education or, yet, go through years of acquiring experience before reaching this goal.

Condos must be the only multi-million-dollar businesses around that are managed by persons without commensurate credentials.

Support for Management Companies Faced with Distressed Condos

Some of these buildings end up under court-ordered administration because their situation is so desperate. But were the Condo Act improved to include more oversight, and with a Condo Office or Ombudsman in charge, owners, directors and managers who can see the handwriting on the wall would have recourse long before the situation becomes extremely detrimental.

Self-Management

Some condos, especially small ones, decide to self-manage. How does this work?

An owner or one of the board members, generally the president, takes on this role for a stipend. This is permitted by the Condo Act but a by-law has to be passed regarding remunerations. In addition, this by-law has to be renewed as the years go by.

One president said that it was less stressful for him and less time consuming to be the manager:

“I am doing in the same number of hours what I used to do as the president plus what the former manager used to do. I waste less nervous energy than when I used to be repeatedly asking that things be done when I knew they weren’t getting done. My time is more efficiently spent doing what needs to be done rather than worrying that it’s not getting done.”  He has about 185 suites and does all the work in 20 hours. Before, the manager used to put in 25 hours while the president put in 15! And the current president spends only one hour each week monitoring the situation.

But it is certainly a risk for an owner to undertake such a job because he or she is constantly on call and at least one other board member has to act as a substitute for vacation and in times of health problems.

Needless to say that self-management is not for everyone. The owner/manager has to set boundaries so that residents do not show up at his suite and do not constantly approach him with complaints while in the pool or in the gym. One also has to be careful to avoid conflicts of interest and treating some residents better than others.

It is advisable, but not mandatory, that a director who becomes the manager resign from the board position to avoid conflicts of interest created by joining the two roles of employer and employee. A president-manager is not generally well supervised by the board. This could be a problem in terms of misuse of funds and lack of accountability.

Common Problems of Condo Living

In this chapter, we cover condo problems caused by other residents... pets... and guests...! 

We begin with Noise Problems 

To find out what are the most common problems occurring in condos, please click here and consult the sections in Readers Respond.

For Problems located in other chapters:

Problems with access to condo records? Click here for Right of Access to Condo Records

Problems with the board of directors? Click here for Boards of Directors and, to see what other owners' problems are, click here for Issues With Boards of Directors

Problems with fees, liens? Click here for Owners' Money Facts and then Condos' Financial Structure

Problems with maintenance and repairs? Click here for What Are Managers' Duties? and FAQs About Your Building.

If you want to know who is responsible for repairs and maintenance, please click on Who is Responsible.

At any point in time, you may want to go into Readers Respond to read letters about various problems that other owners, board directors, and managers have experienced.

For other problems caused by residents, pets, and guests, please scroll down to the next sections below.

Noise Problems

Noise transmission is the numero uno social problem in condos, in large part due to building code standards that are barely minimal for an environment where people live in close proximity to each other. (Click here for How to Explain Noise Transmission?)

It should become a key tenet of the Condo Act that anything interfering with residents’ quiet enjoyment of their suite or townhouse should be eliminated. It is a board’s duty, through the management office, to make certain that undue noise caused by residents, their guests or pets, is stopped.

Even if only one or a few residents are affected, the rule is the same: The situation has to be corrected.

Indeed, noise problems affecting only one suite often go uncorrected and the afflicted owners end up isolated and feeling helpless, as described in some of the letters in Readers Respond. Instances of managers and boards who turn against such owners are fairly common occurrences.

Noise from Common Elements

Since 2009, more letters have been received about noise from the common elements (pumps, chiller, elevators, exercise rooms, party room, etc) than about noise from other residents. These noises had not been resolved.

Owners wanted to know what to do about this?

  • 1. Wait at least one day, and then make a polite phone call to the management office. Keep a note as to the time of this call.
  • 2. The manager  should come to listen and inspect the situation within a few days at most.
  • 3. Write down a log of the noise: when it occurs, its strength, etc.
  • 4. If you have not heard anything and nothing is done after a week, a polite follow up letter is indicated with a copy of your log.
  • 5. This failing, after another week, please try to write a letter to the board of directors, attaching a copy of letter to the manager with the log.
  • 6. In the meantime, try to see if other residents are similarly affected.
  • 7. If the situation is serious, you might want, with the help of a lawyer, seek a court order, under Section 134 of the Condo Act of Ontario, that would force the board to comply and do something about the source of the noise.

Noisy Neighbours

Some residents slam doors; yell; are so loud that they are heard in other suites. Others have fights; watch TV or listen to music at top decibels; stump on the floor in the middle of the night; wear high heels that go clip-clop on their hardwood floor. Others have loud conversations on their cell phone on their balconies at all times. Yet others have loud parties on a regular basis. Needless to say that these residents create a lot of headaches for their neighbours, even though this is not their intent.

What can you do if this is a perfect description of your upstairs neighbours, or the one across the corridor from you, or the one next to you? 

Steps to take: 

Cautionary note: Very often, residents' noise is not their fault and stems from the poor soundproofing of the building. It often happens that normal walking or dropping a small object result in quite a bit of noise in the unit below--yet this is normal behaviour. Therefore, before getting into the steps below, please do recall that your above neighbours may not even know that they are making "noise."

  • Start by documenting in writing the time, duration, and nature of the noise you hear.  But, whatever you do, do not pick a fight with these neighbours!
  • If the noise lasts long enough, see if you can have the person at the concierge desk come into your suite to be a witness. It is actually part of their job to do so.
  • At the very least, report the noise to the desk, especially when you think that it can be heard from the corridor. Security persons have to document the incident in their report. Keep a log of when you report it.
  • Then write a first letter to the manager. Be businesslike and to the point. Attach your report (documentation described above). Ask the manager to first speak to the residents in question. The manager should point out to them that perhaps they do not realize that they make so much noise and disturb others. For instance, the manager can talk to them about the fact that “noise carries in a building such as ours.”
  • Keep a copy of any correspondence you have with the manager on this issue.  You need a paper trail.
  • If the manager believes that both you and the offending neighbours are reasonable persons, she might arrange a cordial meeting. However, this does not mean that you are responsible for solving the problem. This is management and board duty.

If the noise returns, continue your record of the time, duration, and nature of the noise you hear.

  • If you can, have a friend, relative, or neighbour stay at your place for a while as a witness to the noise.
  • After two weeks, if the noise persists, bring your log to the office again with a letter requesting that the manager write a formal letter to the residents asking them to stop.
  • Ask the manager to give you a copy of this letter. He may choose to blot out the offending resident’s name.
  • Again, keep a copy of your correspondence and documentation. And any conversation you have with the manager or report you make with security should be noted in your log.
  • If the manager refuses to write or if nothing changes, then write the board, attach a copy of your logs and prior correspondence, and ask that they enforce the Condo Act.
    It is the board’s duty to make sure that your right to the quiet enjoyment of your suite is upheld. The board should begin by sending a formal board letter to the resident. If this does not work, a lawyer’s letter should follow and, depending on the province, refer to the costs of mediation and arbitration.
  • At the extreme, when even a lawyer’s letter fails, the board may request mediation and then arbitration. This failing, application for a Court order may be necessary. Consulting the condo’s lawyer is imperative for the board at this stage.

If the offending neighbour is a tenant, manager and board should copy the owners and have a conversation with them. It is reasonable to request that owners not renew the lease and warn the tenant that this will happen.

However, an evicted tenant should be closely monitored when he or she moves out because he could retaliate by damaging walls, for instance, or breaking something both in the suite and in the common elements. Manager and owner may need to cooperate and make sure that an inspection of the suite and the common elements takes place before releasing any deposit required for the use of the service elevator (where applicable).

Piano, Musical Instruments, Loud Music

Residents who play piano or other instruments or like to blast their sound system may need to soundproof their music room.  The onus is on them and not on their neighbours who have to hear this music, however pleasant it may be....

Hours of playing are generally restricted. A carpet and pad under the piano or sound system or under furniture on which speakers are placed will be helpful. Carpets absorb noise.

Sound systems placed against a neighbour’s wall may require a sound absorbing background made of cork or other noise absorbing material.

Managers should never force residents to “go upstairs and settle the issue with your neighbour.” It’s not a resident‘s job to remedy noise problems created by other residents. It’s managers’ job to do so on behalf of directors.

Aggrieved residents can follow the same procedure described in the previous sections.

Parties in Units

If someone plans on throwing a party that may last until 11 p.m., a suggestion is to write a nice note to neighbours and apologize ahead of time. Perhaps include what you are celebrating, assure them that you will do your best to keep it quiet and that you don’t do this sort of thing every month.

Balloons

Better yet, have the party in the party room, especially if the party will extend to 1 a.m. (But click here for Party Room Noise Issues) Day time parties in suites are much more acceptable.

One evening party in a suite is acceptable but when this occurs on a regular basis, this becomes a problem. Then the same procedure as detailed elsewhere can be followed by affected residents.  It is always a good idea for a first warning letter from the manager to refer to rules and declaration and to wait for a second letter to mention possible legal recourse.

 With noise issues of this type, especially when only one resident is complaining, boards at times say that “it’s none of our business.” Wrong! It is their business.

Unfortunate instances have occurred when boards or managers have turned against a helpless resident, victim of excessive noise, when he or she requested action.  The poor resident is twice victimized. He or she may consider obtaining a Court order against the board on the basis of oppression under Section 135 of the Condo Act of Ontario. A lawyer should be consulted. (But, for Problems of Legal Recourse, click here into Auditors and Lawyers)

Barking Dogs

Dogs that bark at all times may need to be trained or muzzled. It is perfectly legitimate for a dog to be removed from a suite by the board after due written warnings have been issued.  Again, the same procedure as in Noisy Neighbours can be used.

Recording a pooch’s barks from a corridor or from a suite provides good documentation. In fact, recording any sustained noise may be helpful. (Click here for Pets in General)

Suite Door and Noise

Suite doors are a great noise transmitter. In fact, in many condos, just walking down a corridor allows a person to hear conversations and even more so quarrels. Residents may want to be a bit more discreet...otherwise the entire floor will know their business...

A suggestion is to carry a loud quarrel or discussion away from the main door... and with windows closed...!

Noise from Renovations and Tools in Suites

Generally, unless there is an emergency, renovation work in suites is carried out during regular work hours. Here as well, notifying neighbours and apologizing in advance is the polite thing to do. Still, renovation noise should not result in drilling and hammering for hours on end. The suite door is not left open in order to prevent noise and dust from spreading and reaching an unbearable limit.

Drilling, hammering, and the use of a saw on a regular basis for a hobby or a business are not allowed in a residential building.  (Click here for Do Residents Have the Right to Use Their Unit for Business?) If a resident has a noisy hobby, then the suite needs to be soundproofed accordingly or the resident should engage in this hobby elsewhere.

Noise from Children Playing and Running

Healthy children love to bounce, jump, and run. They drop toys, throw them about, and some have loud temper tantrums.

It is parents’ duty to carpet their unit as necessary. It is exhausting to live under a small child who jumps and runs on hardwood floors. The child is not doing anything wrong but the environment is not properly built to handle this activity. (For Building Code Problems, click here into How to Explain Noise Transmission?)

It is not fair to ask a young child who is by nature physically active to cease all activity. Children need exercise.  A suggestion derived from research on child development is to take young children out to run, bike, or play ball in a park or a safe street on a regular basis as an outlet for the activity level they need. This will increase their ability to concentrate and improve their attention span, both at home and at school.

One enlightened board and manager allow one hour daily during which children participate in a “running program” in the party room located on the ground floor.

They require one supervising parent for every third child above the age of 4 and parents of younger children all have to be present.

Children Playing

This same condo has a pool “children’s hour” each Saturday and Sunday from 10 to 11 a.m. During this hour, children aged 4 to 12 can throw large soft balls and use soft toys in the pool. Up to 10 children can attend and parents have to supervise them.

The condo has experienced a total decline in the number of complaints pertaining to noisy children and parents report that their children are much quieter at home.

Noise from Condo “Hotel” Suites

One very difficult problem occurs in some condos when a company or an owner buys several suites that are then transformed into a “condo hotel” in the midst of what is a strictly residential condo. In these instances, suites are furnished and tenants arrive with suitcases, stay one day, one week or one month, and then are gone. This becomes a transient situation and such an environment prevents boards from developing a spirit of community in their building.

A cleaning staff, hired by these suite owners, may come daily and adds another dose of concern for the manager. Some condos provide this service for a fee for hotel-suite owners in order to control what is going on.

Still, it is surprising that these suites are allowed to operate because they constitute a business. (Click here for Do Residents Have the Right to Use Their Unit for Business?) Unless these condos’ declaration allows this situation, such suites should not be permitted and neither should their staff be on the premises.

In a downtown condo, several companies collectively own 32 suites that are used by out-of-town employees, for conventions and other meetings. The problem here is that, for these employees, these trips to Toronto are an occasion to socialize among themselves, hold parties and, in so doing, create a great deal of noise for adjacent residents. It is difficult for other residents to do anything about this situation because the corporate owners of these suites represent a formidable voting bloc: They have 32 votes and elect boards who turn a blind eye to these activities. 

In another situation, an entire floor has been bought by one company and transformed into a condo hotel with all attendant services. Residents who live below have to put up with a lot of noise, especially at night. 

In a mid-town building, a handful of owners have bought a third of the suites and, although they are not furnished, are rented out even for just a month at a time. Tenants are constantly moving in and out which causes a huge amount of work for the concierge desk and the manager. More management hours are required than would be otherwise necessary, more repairs occur, more wear and tear and frayed nerves as well. As a result, all owners end up with higher fees, in fact subsidizing the profits of this handful of owners who control too many votes to permit a change in the situation. (For info on proxies, click here into Owners' Meetings and Voting)

It should be expected here that status certificates reflect the existence of these suites, otherwise there may be no way that a prospective owner would learn of this situation. Admittedly, I am not certain if this is a requirement. At the very least, it should be—but it is definitely not done. (Click here for Why Is a Status Certificate So Important?)

Party Room Noise Issues

Party rooms are generally on the ground floor, on a floor opening to a terrace, or on the penthouse or even roof level. Different noise problems arise from each one of these locations and rules may differ accordingly.

Unfortunately, many new buildings have a party room that is not sound proofed—even though all prospective buyers of adjacent suites have been assured of the contrary by the initial real estate agents. Please have such promises put in writing at the time of purchase!

In fact, some prospective owners refuse to buy a suite that is directly above or below or adjacent to a party room. Others do not buy on the same floor.

Despite these cautions, some party rooms are so poorly sound proofed that it would cost tens of thousands of dollars to attend to this defect—and, even then, the results may not be entirely satisfactory because of the noise conductivity of materials in the structure of the building. (For Building Code Problems, click in How to Explain Noise Transmission)

Even owners who have done due diligence and have bought a suite not immediately adjacent to the party room have to leave their unit as soon as loud music or dancing take place. As a result, these condos have to limit access only to parties with no music or very low music. Others allow music but only up to 11 p.m., although the party can continue until 1 a.m.

Problems Related to Guests

Residents have the right to invite anyone they want to their suite or townhouse. Receiving guests is easier in townhouses because all that guests have to do is knock on your door. But if a townhouse belongs to a gated development, guests may have to be announced by the gatekeeper, just as is the case in a high rise: The gatekeeper may phone to have confirmation that the persons arriving are guests. 

These are simply measures of security that prevent all kinds of people from disturbing residents’ privacy.

Unexpected and Unwanted Guests

Residents often complain that their guests arrive at their door sooner than expected or are not even invited.

One family was giving a small party for an aunt’s birthday. One distant cousin who had not been invited made his way to their suite unannounced and found the women in the middle of a cooking and baking frenzy, all wearing bathing suits! He had arrived on the wrong day. In the lobby, he had told the concierge that he was the XXXs’ cousin and, “by the way, I forgot their suite number.” The nice young man at the security desk gave it to him. The residents were mortified and justifiably upset, considering their religious beliefs about women’s proper attire in men’s presence.

Concierge and security personnel should never give a resident’s phone or suite number to anyone. In fact, they should not even acknowledge that X or Y is a resident of the complex, unless warranted.

What should the security staff have done? Simply ask the guest to give the name of the residents he was visiting. At that point, the security person can phone the resident to ask about this guest; but the “guest” should not see the phone number.

One woman in her mid fifties had a new male friend who had visited her during afternoons. The security lady had by then become familiar with the friend’s appearance and could recognize him. One day, the gentleman arrived, did not buzz the unit, but followed in behind a resident. The lady at the desk intercepted him and he chided her, using his considerable charm, “You know me.” So, blushing, she let him go.

Five minutes later, a resident phoned to say that there were screams on that floor. The superintendent was dispatched only to find the lady trying to throw the man out of her suite and into the elevator with the help of another gentleman. As it turns out, she had broken up with the first man and he had been harassing her to such an extent that she had had to change her phone number. Now, she feared for her safety.

The above situation could have ended tragically.

In other words, not all guests are expected nor are all guests wanted.

Guests and Parking

Some condos have a fairly small area for visitors’ parking while others can accommodate 30 cars. When expecting a visitor who will need a parking permit, a resident may go to the desk and obtain one ahead of time if the plate number, the color and make of the car are known. Or guests can provide this information when they arrive. At that point, the desk should phone the unit to authenticate the guest.

In other words, the concierge does not give parking permits to anyone who claims to be a guest. Guests have to prove that they “belong” to a unit.  “Guests” just can’t be anyone off the street who is in need of a parking spot.

Day and overnight parking may require different parking permits, each with its own colour. Overnight stays of more than 3 days may have to be approved by the manager. Furthermore, many condos set a limit of 9 to 11 night parking permits per car per suite or per guest per suite.

This procedure prevents residents who are not registered with management from passing as guests. This is particularly important for condos that have an occupancy standard by-law or insufficient guest parking. 

Stuff Thrown Down Balconies

In high rises, a recurring problem is that a few residents throw cigarette butts, food, empty cans, and other objects off their balconies or out of their windows. These objects then litter the grounds below as well as lower balconies and patios and can present a safety hazard for people walking below. These projectiles can also light a fire

The wind pushes objects that are thrown down toward the building and onto balconies and even windows. High winds can also send objects stored on balconies flying all about, break window, hit cars--not to omit pedestrians.

Here are examples of what can happen:

  • A woman leaves her newspaper on her patio table to answer her phone inside. As she is talking, she smells fire: Her newspaper, tablecloth, and cushion are already burning! Someone above threw a cigarette that had not been fully extinguished.

No Smoking sign

  • A resident has put her exotic bird out for fresh air in its cage on her balcony. After a few minutes, she hears urgent squawking from her bird. She runs back to the balcony: Some fluff at the bottom of its cage is burning. She douses both the traumatized bird and the cage and finds a cigarette butt at the bottom of the cage.
  • A resident is driving into the garage entrance when a beer bottle flies down and smashes into his windshield. Startled, he drives into the garage door and breaks it. His car is also damaged.
  • A baby sleeping in his pram under the spring sun on a balcony nearly misses being smothered when a wet pair of men’s shorts lands on his little face.
  • A resident is enjoying a good book in the coolness of early evening when a used condom suddenly lands on his lap. Difficult to explain to his wife!
  • A couple is standing on their balcony leaning against the guardrail. The man is suddenly hit over the head by a full can of pop accidentally dropped from a higher balcony. He had to go to the emergency room and the police was called to investigate.

Some owners have received board permission to install awnings over their patios and terraces. But they cannot do so because of these various projectiles.  As well, many residents on lower floors have to clean debris from their balconies and patios on a weekly basis.

Regular notices should be posted by managers asking for residents’ cooperation. When an explanation of the risks to other persons’ health and possessions is included, such notices are helpful.

Pets in General

Many residents in condos complain about dogs being allowed without a leash in corridors, elevators, lobbies, and grounds as well as exclusive-use backyards in townhouses. Others do their business in the common grounds, in the flower beds, and some pet owners do not do the “poop and scoop” drill. (Click here for Rights and Responsibilities Concerning Pets)

In some condos, dogs urinate on carpets but managers cannot charge the responsible owners because it is difficult to establish proof. Unfortunately, residents who complain refuse to point to the culprits. Managers need help if they are to stop a problem from occurring!

While some condos accept dogs, they have the right to regulate weight and number. A condo may allow up to three pets, for instance, a cat, a dog, and a bird. Or tropical fish or small turtles. But only one dog per suite is allowed.

One has to be realistic: For instance, a condo with 100 units that allows pets may have 25 suites in which there is a dog. If two dogs were allowed, the dog population could reach 50 or even 100. The barking alone would be unbearable in such a small space.

New Residents Are Not Sufficiently Informed

In condos that experience a high turnover of residents, especially when there is a large short-term tenant population, people move in with very little knowledge about the building and even less about rules. They may not know what to do about garbage, where the green bins are, how or when to use facilities, what to expect from the concierge, or what to do about guest parking. Other new residents do not understand how the various card readers or fobs operate or how to open doors. (Click here for What’s a Fob? A Card Reader?)

New tenants generally do not know that problems in their suites should be brought to the attention of their landlord—not to the manager’s office.

This lack of information can create a hectic pace in a condo with people running around not knowing where they are and what to do. They end up throwing garbage anywhere, parking in someone else’s spot, treating the janitor as a personal servant, and even asking the concierge to keep an eye out for their dog.

New residents should receive information, face to face, either from the concierge, the superintendent, or the manager: a personal orientation session. They will remember details far better than if they just receive a package of rules—that will be promptly lost!

In some condos, a welcome committee is trained specifically for the purpose of helping new residents learn about their environment. Each new arrival is presented to a “mentor” of the same language, when possible, and a meeting has to take place within the first three days upon arrival.

Condo Act, Declaration, Rules, and By-Laws

What Is The Condo Act?

This is an act of legislation that regulates most aspects of condo formation, purchasing, living in, and governance. Each condo document has to be based on this Act which, in Ontario, is in theory the responsibility of the Ministry of Consumer and Commercial Relations. Each province has its own act because housing is a provincial jurisdiction. In Ontario, we have The Condominium Act 1998 that came into effect in May 2001.

Many problems and loopholes remain in this Act and in other provinces’ Acts as well. In addition, there is no one in charge of overseeing compliance to this Act.

The situation is such  that individual owners are protected by this Act only when their condo boards and their management company function well, understand this Act, follow it, and enforce it evenly, largely through a condo’s declaration and rules. It's not unlike gambling: some win, most lose...

Owners who are victimized do not have any recourse for their justified complaints because no one is really in charge of administering this Act and making sure that abuse does not occur or that boards do not fail in their duties, whether purposely or out of ignorance. As well, the Act is rather inaccessible to owners and recourse to legal advice can be expensive and even difficult to obtain (For Problems of Legal Recourse, click into Condo Auditors and Lawyers).

Another general problem is that this Act serves managers and boards better than it serves owners. It is much easier for managers and boards to force owners who run afoul of regulations to comply with the Act than for owners to do the same thing when their manager or their board is the guilty party.

Please click here for the Legislative Brief to strengthen the Condo Act in terms of owners' rights that was submitted to the government of Ontario in September 2011.

What’s A Condo Declaration?

A declaration is like the constitution of a condo. It is a thick document that is based on the Act and that each owner receives upon buying a unit in a condo. For resale condos, it comes with the status certificate. (Click here for Why Is the Status Certificate So Important?)

Condo Declaration

A declaration provides information regarding each suite’s boundaries as well as its share of common expenses, which common elements are “exclusive use,” that is, are used only by each unit, such as a terrace, balcony, parking spot, locker, or even a patio or a yard in a townhouse condo. The declaration describes the recreational facilities and how they are to be used. It may mention restrictions on pets.

Declarations are specific to each type of condo. For instance, a condo that shares facilities with another one will include sections that focus on this aspect and regulate how these shared facilities will be administered and used. A townhouse condo will have sections that will not appear in the declaration of a high rise and vice versa.

The declaration is the basic document for condo owners. Therefore, a unit owner should at least leaf through it, or ask the real estate lawyer to interpert certain sections, preferably before buying. For instance, declarations put limits on some activities (pets, business) and a prospective buyer who doesn’t know about these may have problems later on.

Declarations are written by a builder or a developer’s legal firm. Therefore, it is this building company that decides what will be an exclusive-use common element versus what is owned by the unit. When a unit is resold, declarations are contained in the status certificate given to prospective or new owners. (Click here for Factors to Consider When Buying a Condo)

Unfortunately, declarations are not user friendly: They are not clear, are written in legalese, and very difficult to understand.

(Between June 2009 and December 2011, this website has received at least 40 requests for interpretation of certain segments of various owners' declarations--regrettably, these readers are advised to contact a lawyer or the referral service of the Ontario Law Society--where people can consult a lawyer for up to 30 minutes for a very small fee.)

Another problem with declarations is that they are not standard from condo to condo, so that what is an exclusive-use common element in one may not be in another. This makes for a very confusing situation.

The declaration cannot be changed unless 80% to 90% of unit owners consent in writing, depending on the issue. A written consent is obtained by the board after a meeting of owners during which the amendment is discussed. Lawyers are consulted by boards before any amendment is considered.

Declaration, by-laws, and rules will differ somewhat depending on whether a condo shares facilities with another, whether it’s a high-rise building, townhouses or bungalows, or a mixed-use building. Or yet, if it includes a marina or gardens for the use of residents.  A time-share and hotel-condo will have their own set of rules as well.

What Are Rules For and Who Makes Them?

Rules are initially enacted by the builder or developer and later on by the board of the condo. Rules have to be reasonable and in accordance with the Act as well as the Human Rights Code of each province. Generally, a set of rules is drawn by a builder’s law firm and given to each new owner along with the declaration. In Ontario, rules have a common core but vary by type of condo, the facilities that exist, and may even differ between similar condos. It would be more functional if rules were universal from condo to condo.

Rules basically exist, as stated in section 58(1) of the Act, to promote the safety, security or welfare of owners and their property as well as the corporation’s assets. Rules also exist for the purpose of preventing unreasonable interference with residents’ use and enjoyment of their units and common elements.

Rules and regulations are helpful as they guide the behaviour of residents. People then know what to expect.

Rules generally cover issues of responsibility for the maintenance of common elements, behaviours in common elements, noise, garbage disposal, bicycles, pets, parking, exclusive-use common elements such as terraces, balconies, and patios, moving, fire safety, and health, recreational facilities, guest suites, grounds, roof gardens and shared facilities.

One very good rule that a condo can pass is to prohibit owners from leasing their unit for less than 6 months. This prevents a condo from becoming a “condo hotel” if it is the will of the community. 

We have seen that it is difficult to change the declaration. Rules can be added or eliminated somewhat more easily. How is this done?

The board has to draft a rule, or propose to eliminate a rule. The board then approves it and the new rule is posted or sent in a notice to all owners. This notice states the new rule, gives its purposes, and also explains that, if owners object, they can requisition a meeting. If no meeting is requisitioned, the rule is considered accepted by owners 30 days after the notice has been posted. (Click here for Requisitioned Meetings)

In turn, rules have to be enforced by boards of directors consistently. The problem here is that some boards do not do so and there is really no one in charge of enforcing board compliance. However, Courts generally uphold a condo’s rules unless they are unreasonable or in violation of another legislation.

What if the board does not enforce the rules?

First, write the board and request that rules be consistently enforced. This failing, requisition a meeting to discuss the issue. And if all fails and there are other serious problems in the condo, and if owners can do this, they should requisition a meeting to replace the board. But if this is not possible, Section 134 of the Condo Act in Ontario allows for a court application in order to force the board to comply with the Act: not enforcing rules goes against the Act. However, recourse to a lawyer is necessary here.

What Are By-Laws?

By-laws are legally binding documents approved by a condo’s board of directors and voted by owners at an owners’ meeting. By-laws’ purpose is to complement what is missing or is not specific enough in the declaration. (Click here for Owners’ Meetings and Voting)

By-laws that are important for condos are now described.

Standard Unit By-Law

The Standard Unit By-Law describes in detail what in each suite is “standard,” that is, what is not an upgrade (or an improvement). Standard means what was specified and sold by the builder as part of the regular sales package.

What is an upgrade? It is, for instance, a higher-quality carpet than what was offered by the builder or that an owner later installed while renovating her suite. In some developments, marble floors and hardwood floors are standard but, in others, they are upgrades and owners incur additional costs to have them installed. Cabinets that are specifically designed for an owner constitute an upgrade. Ceiling lights in bedrooms and living areas may be upgrades. An additional shower enclosure is another example as are higher-grade paints and wallpapers.

Therefore, this by-law describes the standard type of carpeting, tile, or marble, tub, countertop material, cabinetry and faucets/taps that came with the unit or would have come with the unit if upgrades had not been paid beyond the price of the regular or standard features.

 

The other purpose of this by-law is to specify what is covered by the condo’s insurance and the owner’s insurance. When an accident, such as a pipe bursting, occurs and damage results, damage to upgrades in a suite is never a condo’s responsibility but solely that of owners and their insurance.

 In some condos, when time came to draft this by-law, it was specified that no flooring and no countertop were to be the responsibility of the condo corporation, but were strictly owners’ responsibility. The rationale behind this, as explained by lawyers, is that floors and countertops, when they are worn out or damaged, are the two items that are the most susceptible of being purposely damaged by owners in a staged “accident” so as to make the condo responsible to pay for their replacement.

Obviously, when this happens, a condo can investigate but it is difficult to prove that an owner or a tenant has damaged their flooring or countertop purposefully. As a result, the condo may have to pay the $2,500 deductible (or whatever deductible) and more. If five such deductibles occur in a year, this means $12,500 for the condo and the possibility of the insurance premium going up.

In such a situation, all owners have to pick up the tab for these deductibles and the subsequently raised insurance premium.

It is understandable that upgrades would complicate a condo’s finances if the condo were responsible for their replacement in the event of a water leakage or fire. In many cases, it would be difficult to replace them at cost because original proof of sale may no longer exist. As well, there would be a great deal of bickering on the part of owners as to the quality of the replaced upgrades. In addition, when fire destroys a room, proof of upgrades may vanish.

This is why upgrades are like furniture and personal possession: They are the responsibility of owners’ insurance.

Insurance Deductible By-law

This by-law addresses who pays for the insurance deductible and complements the declaration in this respect. In other words, it addresses the question of who is responsible for what. For instance, it clarifies

  • Which damage to a suite or common elements is covered in the corporation’s insurance: Damage caused by fire, smoke, flooding, water seepage from the common elements into a suite, from one suite to the common elements and from one suite into another;
  • Who is responsible when such damage is the result of an act of omission or commission (voluntary or involuntary) by an owner, a resident, a guest of any resident, or someone who works for a resident.

Examples:

A resident is alone cooking and falls asleep; the pot burns, a roll of paper towels catches fire, the smoke alarm goes off but, by the time he wakes up, his suite is damaged by smoke and so is the corridor next to his suite. The damage to the corridor is assessed at $2,000 while the condo’s insurance deductible is $2,500.

Who pays?  Depending on the declaration and the by-law, the owner may pay the $2,000 for the corridor. If the owner does not pay, this sum becomes part of the common element arrears and a lien can be registered against his suite. (Click here for Liens). If it is a tenant who is responsible, the owner may still have to pay and recoup the money from the tenant.

Another example is that of a resident or guest who leaves the water running to answer the phone, forgets to turn off the water, and the water runs and seeps down to the suite below and damages the ceiling. In this case, the damage is repaired by the superintendent and the corporation charges $350. The owner of the “leaky” suite may have to pay, depending on the declaration or by-law.

A guest is left alone in the men’s change room and proceeds to vandalize the place. The concierge sees the young man go in and out. The damage is assessed at $5,000. The owner not only has failed to accompany his guest (which is a rule in most condos) but he becomes responsible for the condo’s deductible at the very least—depending on what the declaration or insurance by-law states.

A last example focuses on damage done from common elements: A pipe bursts in the walls between two suites and damages several suites below. The condo has to pay for the damage to suites, but only for the aspects that are specified in the standard unit by-law. Owners’ insurance (or owners) has to cover upgrades and replacement of all furniture and personal possessions.

Click here for Insurance.

Mediation/Arbitration By-Law

This by-law provides a condominium corporation with a set of procedures to follow should a dispute arise between two owners or between an owner and the condo. This by-law addresses how a mediator is chosen, who can be a mediator, timelines, documents to be presented, fees, and what defines a failure of mediation. Similar clauses are written for the process of arbitration.

For owners especially, there are many problems with the entire process of mediation/arbitration.

The problems are as follows:

  • These are costly procedures (fees generally start at $350 per hour). And this does not even include legal fees. (For Owners' Problems of Legal Recourse, click here into Auditors and Lawyers)
  • The outcomes may be neither fair nor satisfactory.

Arbitration

  • It is difficult for owners to provide a list of potential mediators. In contrast, condos may already have such a list or obtain one from the condo lawyer. An owner who is a recent immigrant may have even more problems because she may not have the necessary contacts.
  • If the condo corporation is involved, it is supported by its lawyer (paid by all owners). But the owner may have to pay if the arbitration goes against him. (The reader may want to see letters in Issues with Lawyers.)
  • An owner may initiate such a procedure against another owner for purely childish reasons. If the mediator understands this, then he or she may charge the initiating owner for all the fees. But it’s a big “if.”

Everyone, including condo lawyers, agree that mediation and arbitration are faulty processes. It is herein suggested that the Condo Act of Ontario should be amended to, among others, institute a Condo Ombudsman Office, independent of the various condo industries, that would oversee procedures, enforce rules, and settle disputes in condos.

By-Laws for Rental of New Lockers, Parking Spaces, and New Guest Suites

Such by-laws are generally necessary when managers and boards of directors resolve that there are empty spaces in the common elements where lockers or parking spots could be put.

Or, yet, a building may have two party rooms and the one that is rarely used could be turned into a guest suite.

Once the board establishes that a sufficient number of residents are interested in leasing the lockers, parking spots, or guest suites, the corporation can then proceed to present this by-law at an owners’ meeting. This is necessary unless the declaration already provided language to the effect that these spaces existed and could be later transformed and rented without owners’ approval. 

Other By-Laws

An occupancy standard by-law is passed in some condos in order to regulate the number of persons who can live in a suite depending on the number of bedrooms. It is, however, difficult to enforce this by-law because there is always the risk of violating the Human Rights Code. In addition, municipal by-laws have to be followed in these considerations. As well, this by-law could be used by unfair boards and managers to discriminate against some residents. (See Readers Respond list of topics.)

Other by-laws that can be passed pertain to a new bulk rate cable service when not included in the original declaration. As well, a loan by-law will specify the amount that can be borrowed for a specific project, such as roof replacement, when a reserve fund is depleted. This by-law will also stipulate a time line.

Or a by-law can describe who can be a member of a board of directors. For instance, some condos restrict these positions to persons who are owners or are resident owners. Such by-laws may also specify reasons that would allow a board or a group of owners to ask a director to resign (such as not attending meetings, breaking rules) without having to vote at a requisitioned meeting. (Click here for Requisitioned Meetings)  At this point, it is difficult to know how fairly such a by-law might be applied, given the widespread breaches in fairness taking place by boards, managers, and even lawyers, as well detailed in readers' letters in various sections of Readers Respond.

A condo can also pass a by-law or a set of rules that govern how board meetings are conducted. Such by-laws could, for instance, allow owners to attend board meetings or bring some business to be discussed. However, it should be said that some boards already do this occasionally. These are decisions that should probably best be left to a board’s discretion rather than set in stone in a by-law.

Indeed, such a by-law might not always produce the intended results as some owners may abuse the situation and directors may find it difficult to reach decisions while under constant and critical scrutiny. As a consequence, in the future, no one may wish to become a board member because of recent experiences of owners disrupting meetings and harassing directors in the process of reaching decisions. It would then be difficult to remove the by-law.

What Should Be Done to Improve Condo Governance and Help Owners?

There is wide agreement among groups of owners, especially those who have encountered problems, that condos as a category of residence suffer from serious difficulties--as illustrated in the letters posted in Readers Respond.

The problems that plague condos largely depend on the insufficiency of Condo Acts.

But let’s be realistic here: before the Act is reformed, before the government provides oversight, before managers become professionals, and management companies meaningfully regulated ... years will elapse. In the meantime, more modest steps can easily be taken that would nevertheless be most helpful.

Stop-Gap Measures

There are a few urgent changes that could be implemented in the meantime and that do not depend on changes in the Condo Act. Various groups and individuals could act  upon them as stop-gap measures. Unfortunately, this depends on  good will.

Changes for Boards:

  • Boards of directors should be better informed about their legal duties and take them more seriously.
  • Turnovers within boards, for one president to another, should include information meetings between previous president and new president as well as between previous treasurer and new treasurer--as is the case for any large business, which condos are.
  • Owners should be informed that such turnovers have taken place with satisfactory results.
  • Boards should communicate regularly and truthfully with owners and be more accountable to them.

A shift in mentality on the part of boards and managers is needed so that owners are informed more fully and are allowed greater access to documents. Secrecy needs to be replaced by transparency and accountability. Boards and managers should understand that the monies they are spending are owners'!

Changes for Managers:

  • Management companies should become more responsive to condos’ needs and accountable to boards of directors and the corporation (owners).
  • Managers should act ethically, in the best interest of all owners, rather than simply protect their contract with a particular board.
  • Management companies and managers should disclose conflicts of interest regarding companies and contractors. Gifts from these contractors should be substantially reduced and monitored.
  • When there is a change from one management company to another, the new company should encourage its managers to first learn about the building, its past, its technology, its problems and strengths, so as to adapt management practices accordingly and move forward more quickly.

Changes for Lawyers:

We need more firms of condo lawyers servicing condo owners exclusively rather than condo corporations and management companies. This would greatly help reduce potential conflicts of interest. It would also increase owners’ access to legal help and their confidence in the legal system.

  • As well, there is nothing that prevents law firms from rethinking how they serve corporations, how some of their lawyers actually work against the good of corporations by standing by boards who are unethical and turning against hapless owners whose only fault is try to have their rights respected. (Click here for letters regarding Issues with Lawyers)

Legislative Changes Needed 

Below are 5 key changes that would require legislation, particularly via a new Condo Act, in order to effect mandatory changes that would not depend on the good will of boards, managers, management companies, and lawyers. Only the outline is presented here.

  1. What owners need is a Special Condo Board, or Office, or Ombudsman, to supervise and enforce the Condo Act. Lack of government oversight, regulation, and enforcement over the condo industry in general and lack of enforcement of the Condo Act is the key problem condo owners face.

As things stand, owners who encounter problems have no one to turn to for solid information and advice. When problems become serious, owners either have to suffer in isolation or consult a lawyer. And, as we see in many sections of Readers Respond,  consulting a lawyer is no easy matter for condo owners.

  1. The Condo Act itself needs to be updated and strengthened. It carries too many loopholes.
  2. The management industry should be regulated and accredited. In addition, managers should become  professionals and receive a proper formal education. They should be licensed.
  3. Condo boards of directors should become more accountable to their orporation and owners.
  4. Building Code standards should be improved and a new home warrantee program should be strenghtened — click here for How To Explain Noise Transmission?

The details for the above outline can be found in the next section on Legislative Changes Needed to Help Owners. Also see the Legislative Brief submitted to the government to strengthen condo owners' rights.

 

Peace Dove

 

Legislative Changes Needed to Help Owners

What Should Be Done?

We now return to where we left in the previous section where we enumerated 5 basic recommendations that would protect owners and their property.

1. Create Independent Condo Boards or an Ombudsman Office

In Ontario, the Ministry of Small Business and Consumer Services (and  equivalent Ministries in other provinces and territories) should establish an Office with powers to supervise and enforce regulations pertaining to all aspects of condo governance. It has been suggested by various groups that a Condo Ombudsperson position be created.

It has also been suggested that each condo owner pay $3 to 5.00 a month in order to support such an office.

It would be especially important that such offices be staffed by personnel who are not exclusively part of the various condo industries and their lobby groups. Otherwise, current problems will be perpetuated to safeguard these groups' interests to owners' detriments.

A Special Ombudsman Office  would:

  • Provide information to prospective condo owners, owners, tenants, managers, and boards of directors upon request, by phone, online, regular mail or in person.
  • Establish a clear-cut procedure that all parties would have to follow when a problem arises and existing avenues of communication within their condo have been exhausted. This would replace the wasteful and inefficient process of mediation and arbitration.
  • Remedy a situation and force concerned parties, whether a manager, a board of directors, an owner, or a group of owners, to follow rules within a number of days or weeks.
  • Set a body of financial penalties against managers and directors who do not comply with rules and ensure that the penalties are duly paid to afflicted residents or the condo corporation without anyone having to turn to a Small Claims Court. The threat of such financial penalties would go a long way to prevent many situations from arising in the first place. It would also prevent the special Office from being overrun with the arbitration of problems that would otherwise arise.
  • Penalties could also be levied against owners who refuse to follow certain rules, particularly noise, lack of cleanliness, and speed limits in garages. 

2. Strengthen and Update the Condo Act

The Ontario Condo Act of 1998, which became effective in May 2001, is certainly a vast improvement over the two previous ones. However, it needs to be readjusted as problems have been discovered. Changes are suggested based on the contents of the letters received.

Clarify and Strenghten Owners' Right of Access to Condo Documents

Although this right is already included in the Act, it is not uniformly upheld. Therefore, the Act should clearly specify that all owners have access to relevant condo documents, without their having to provide a reason for their requests.

As well, a specific time should be suggested, such as one week for documents that pertain to the current fiscal year.

Obligate Boards to Post Reports About Board Meetings

This suggestion is in reaction to the widespread problem of lack of information that afficts tooo many condos in Ontario--and other provinces. These reports should be informative rather than vague: They should include more than a list of items on the agenda but describe the decisions reached as well as the rationale.

Include Financial Penalties 

It does not help the situation that there are no financial penalties for boards of directors and managers who do not follow rules themselves or who do not enforce them. As things stand, many boards and managers are not even familiar with the rules of their condo. Others simply do not take them seriously because they are well aware that they can disobey them with impunity. Nothing will happen to them!

But if financial penalties were enacted, and individual board members and managers rather than the condo corporation were responsible to pay, then it is certain that this news would spread like wildfire—and compliance would be forthcoming. Owners would be better protected.

Penalties should apply, not only for the $500 for refusal of access to condo records, but for refusal to allow owners to requisition a meeting, for not posting information regarding board meetings, as instances.

It is doubtful that penalties would discourage people from becoming directors because, once penalties are well known and once a Special Condo Office would enforce rules, directors would simply comply. In fact, their duties would become more clear-cut and there would be less confusion among them and owners.

For instance, there already is a $500 penalty given to an owner who is refused access to condo records within a timely delay. The problem with this is that the penalty is paid by the corporation and not the person who refuses. Therefore, it is not an incentive for compliance. Furthermore, the current process is simply inefficient and too hard on owners: It is oppressive and discriminatory.

Oppression

 

In the Act, the onus to seek redress is on owners who have been deprived of their rights. This onus should be lifted from their shoulders because it is an unfair burden that owners of other types of homes do not have. In essence, it is discriminatory.

It is interesting to note that the Strata Act of British Columbia allows for small financial penalties when owners break rules. It would be helpful if this were applied in Ontario because rule breaking on the part of owners is a problem for managers, boards, and other owners. Rule breaking can threaten the civility of a condo. 

Clarify and Standardize Declarations

Currently, condo declarations, which owners may need to consult to see who is responsible for the replacement and maintenance of their personal-use common elements, are too difficult to read. In addition, they differ from condo to condo.

Instead, declarations should be written in plain English rather than the obtuse one or the legalese parlez-vous anglais that is current.

In addition, declarations differ from condo to condo. For similar types of condos, all declarations should be the same. Not only would this be helpful for owners but it would also make the life of managers easier. This would be particularly useful when it comes to deciding what is an exclusive-use common element and who is responsible for maintenance and replacement.

Delineate Condo Lawyers' Role

Here, one should refer to the many problems brought to our attention by owners whose boards or managers have used lawyers to oppress them. Or who were deprived of their rights at AGMs when a lawyer stands by an unethical board or prevents owners from using their right to free speech. Click here on Issues with Lawyers and Abuse of Legal Letters and Liens. The role and duties of condo lawyers should be more clearly delineated in the Condo Act.

As well, groups of condo lawyers should have practices with only condo owners as their clientele so as to avoid the many situations where lawyers' main clientele consists of boards and managers; owners then have no recourse.

Finally, a corporation lawyer should hear out an owner who has concerns about fraud, illegal practices, or other issues in the condo. The lawyer should then look into this situation and, at the very least, advise the board or manager accordingly.

Reduce Difficulties Faced by Owners When Trying to Requisition a Meeting

It has become too difficult for owners in large condos and, especially, in condos with less than 70% of resident owners, to requisition a meeting for various purposes. This issue is particularly difficult for owners who requisition a meeting with the purpose of changing a board who is not accountable.

  • The Act requires that a requisitionist obtain the signatures of 15% of suites' owners. This becomes nearly impossible in large condos, especially with a majority of absentee owners. It is suggested that this percentage be lowered to 10% depending on size and/or proportion of absentee owners.
  • Even if a meeting is successfully requisitioned, many boards and managers prevent them from occurring. A financial penalty should be imposed, paid by the individual directors and managers. Such a penalty would go a long way to prevent this situation from occurring.
  • When the goal of a requisitioned meeting is to remove a director or an entire board, an affirmative vote from a majority of all suites (not just those present) is required. In a condo with 300 suites, this means that a minimum of 151 affirmative votes has to be found. This is practically impossible to achieve. It is suggested that an affirmative vote from 66% of owners present at the meeting--whether in person or by proxy--be necessary instead,  provided that the same as for AGMs is required. This new calculation would require only 75 owners to be present and a 66% affirmative vote of 50 would settle the issue.

The burden of rectifiying a situation in a condo always falls upon resident owners.  It is only fair that these resident owners not be overly burdened with work and suffer from "political" hassles when time comes to requisition a meeting and obtain affirmative votes. Owners should not be so heavily penalized when they attempt to right a wrong.

The writers of the current Condo Act had certainly not anticipated that a large proportion of Ontario condos would be owned by investors rather than resident owners.

3. Management Should Be Accredited and Managers Licensed

This is discussed at length in the chapter on Management. Click here for What Should Be Done To Improve the Management Situation?

4. Condo Boards Should Become More Accountable to Owners

How to improve boards is discussed at length in the chapter on boards. Click here for What Is a Good Board? as well as What Should Be Done To Improve Boards?

5. Improve Building Code Standards

Particularly needed here is higher standards of construction in terms of protection against noise from other units and from mechanical rooms as well as elevator shafts and party rooms. Indeed, website pages on noise problems are one of the most frequently consulted.

As well, the quality of other materials, such as pipes, should be raised. Particularly worrisome are plastic pipes that are not strong enough and too small.

Problems with Liens

Below are suggestions that would help improve the situations regarding liens.

  1. The necessity to lien a unit in arrears in common element fees before the 3rd month expires should be extended. Condos should be able to recoup all arrears up to 6 months after they started. This would give managers more flexibility. It would also help owners who are under financial strain.
  2. The Act should make it standard that, in all condos, owners who do not do proper maintenance and repairs of their exclusive-use common elements and, as a result, force the corporation to carry these out, should be liened if they refuse to pay. As things stand with Sections 91 and 92 of the Act, the declaration of a condo has priority in this respect and this becomes an object of confusion for all concerned.
  3. It would also make matters easier if a lien could be registered against an owner who does not pay rental fees for lockers, guest suites, and parking spaces that belong to the corporation.
  4. Above all, we have seen in Abuse of Legal Letters and Liens that owners need recourse when unfairly liened. Therefore, the situations that can result in a lien should be more clearly delineated.
  5. One could even suggest that, when an owner is the victim of an improper lien, a simple recourse should exit and the offending lawyer should pay all fees with an appropriate penalty, which would then act as a deterrent.

FAQs About Your Building & Your Unit

The purpose of these pages is to address some of the most frequently asked questions (FAQs) about

  • owners’ responsibilities concerning their common elements
  • the most common practical issues that residents face
  • problems residents encounter regarding their unit (noise problems are addressed elsewhere: click here for Noise Problems)

One of the key elements in understanding how a condo building works is to understand what types of "common elements" exist.

What Are Common  Elements?

Common elements are those parts of a condo complex that belong to all owners. With a few exceptions, they constitute everything except the units in which people live. Corridors, garbage rooms, lobbies, locker areas, garages, technical rooms, the roof, grounds, walkways are all common elements.

Other common elements include heating and air conditioning systems, hot water system, pipes, electrical systems, all light fixtures in common elements, and the security system.

Common elements generally are the responsibility of the condo corporation in terms of maintenance, repairs, and replacement.

What Are Exclusive-Use Common Elements?

Exclusive-use common elements are those parts of a building to which only the owners of a unit or owners whose units are adjacent to them have access. The most obvious are balconies, terraces, patios, and front and backyards. Also falling into this category are parking spaces and marina slips. 

However, it should be recalled that there is no uniformity in what constitute an exclusive-use common element in Ontario. In some units, some features, such as terraces and patios, are common elements while in others they are freehold (that is, entirely the property of the suite owner). How do you know what is what? The declaration of your unit will give this information.

Less obvious, fan coils, fire and security systems in each suite may also be common elements. Thermostats and exhaust vents may be part of the unit as well or may be common elements. In other words, these can be entirely owned by the unit or by the corporation. Again, this information will be found in the declaration.

A sound rule is that any feature that is within a unit is owned by that unit, unless stated otherwise in the declaration. Click here for What's a Declaration?

Townhouses, in particular, vary greatly in terms of what is considered to be a common element versus what is entirely owned by owners--please click here for issues provided by readers: Issues Specific to Townhouses.

What Are Restricted-Use Common Elements?

They are those parts of the building occupied by staff, such as the concierge desk and various offices, as well as electrical and technical rooms where only staff and contractors are allowed for obvious safety and security reasons. These belong to owners but are not their concern.

Amenities fall half-way in that category in the sense that some may be accessible only upon reservation (guest suites, party room, theatre, bowling alley). Others may be accessible only with a special entry card and within limited hours (pool, gym).

Who is Responsible for Maintenance, Repairs, and Alterations?

Owners should consult their condo’s declaration to know who is responsible for the maintenance, repairs, and replacement of their exclusive-use common elements. Some situations are unclear and may require legal interpretation.

Generally, owners are responsible for the maintenance of all the common elements that are their exclusive use. Rarely are they responsible for their repair or replacement. But there are exceptions and these exceptions will be specified in the declaration. Townhouses, in particular, show a great deal of variation in what is fully owned or is a common element, at times with costly results. Please click on Issues Specific to Townhouses for information sent by readers.

When time comes to replace features that are common elements, the reserve fund can be used. But if they are individually owned, each owner may be responsible to replace them.

Owners are responsible to pay for repairs and replacement when:

  • They have not carried out proper maintenance or have not allowed the corporation to do so and, as a result, for instance, the fan coil or the balcony has been damaged.
  • They have broken an item (a balcony railing, for example, or the fire alarm system) and repairs have to be carried out.
  • Their guests or tenant have broken something that is an exclusive-use common element or is part of one.
  • Toxic materials, car oils, or others have leaked, such as in a locker or in a parking space.

Example:

Tenants have not allowed the manager to come in to maintain the fan coil. After many letters, the manager went in to find access to the fan coil blocked by a bookcase. This bookcase is also preventing air circulation because the filter is right behind. The motor has burnt out. The owner may have to pay for repairs and replacement.

The Corporation is responsible for damage caused by leaks from the common elements, such as the roof, pipes that burst between walls, and leakages caused by worn out caulking outside. Boards cannot refuse to fix the damage because "there is no money." Rather, the board has to raise fees, or do a special assessment, or take a loan to top up the reserve fund.

Unless otherwise stated in the declaration, owners in Ontario are responsible for the twice yearly fan coil maintenance. But condos generally carry out this maintenance as part of the regular budget because owners would forget to do it or might use a person who is not qualified. This could result in water leakages, mould, and the rapid deterioration of the unit. 

Can You Make Alterations?

Yes, you can make alterations to your unit, but only after obtaining a written approval from the board of directors and fulfilling the requirements stated in an agreement between you and the corporation.

Alterations should not compromise the external appearance of the property, the safety of residents, the assets of the condo, nor should they result in any cost to the corporation. This applies to anything, from installing flooring other than carpets to adding an electrical outlet to an outside wall. Adding or eliminating a wall is a particularly contentious issue because of the potential for structural problems.

Adding mats or outside carpeting or grass imitation on the floor of balconies or terraces is generally not permitted because these contribute to the deterioration of the cement and of any water proofing membrane that may exist.

Instead, boards may permit some slats that are mostly raised and that allow for water movement and evaporation. Water that pools on a terrace precipitates deterioration, creates stains, and invites mosquitoes.

Even drilling to attach flower pots or awnings requires board approval because exterior walls and balcony railings generally are common elements.

On balconies, only seasonal furniture is generally permitted as well as a reasonable number of flower pots. Light furniture and small objects left on a balcony could become lethal projectiles in high winds.

Earth flats in which to grow vegetables require board approval. The board may need to consult an engineer to know the weight that balconies can safely carry. The board should then enter into a written agreement with interested owners and determine permissible weight, prevention of damage to balconies’ cement, glass, or metal sidings, and other owners’ responsibilities.

What Should the Board Require?

For an outside alteration, the board will:

  • Set the standards in terms of appearance and material so that changes will be uniform throughout the building.
  • Enter into a general agreement with each owner regarding rights and responsibilities. This could include a fee for electricity or gas if owners place additional electrical outlets or a fireplace. An insurance adjustment may be necessary.
  • May require that the contractor be chosen by the condo rather than by owners. Naturally, there would still be a process of obtaining quotes from two or three contractors.
  • Require that owners register some of their changes and the agreement on the title of their unit before work proceeds.

What Can You Change in Your Patio or Yard?

In townhouses, patios and yards, especially backyards, are usually for the exclusive use of the residents of a particular townhouse or of a group of townhouses adjacent to a yard.  In some condos, these patios and backyards may actually be privately owned.

Owners need to read their condo’s declaration to understand what they own outright and are responsible to do in terms of maintenance, repairs, and replacement.

As in other condos, when backyards are exclusive-use common elements, owners are generally responsible for their maintenance but the condo corporation is responsible for repairs and replacement. This includes fences, gates, walls, steps, interlocking stones, bushes, trees and even flower beds. In some townhouse developments, owners have to prune the shrubs while, in others, the condo corporation hires someone to do this.

Flower Garden

In small townhouse developments, it makes financial sense to elicit residents’ cooperation in watering plants and keeping grounds clean.

If an owner wants to have a tree cut down in her backyard, she should obtain the board’s written permission because trees belong to everyone in an exclusive-use common element. (In some cities, cutting trees requires city permission.) The board may accede to the request but may not want to pay because cutting the tree may only benefit that particular townhouse. Furthermore, the board may rightly request that a smaller tree be planted.

Any change to common elements, including exclusive-use common elements such as backyards, requires board approval. Moreover, board specifications have to be followed.

When trees are infested, then it is a condo’s responsibility to have them sprayed or cut down and replaced by a different type of trees. Not only is this good for the environment but trees add value to a property.

If owners want to add bushes or trees or a gazebo, again board permission has to be obtained. The board may also request that owners enter into an agreement with them to the effect that they will be entirely responsible for the maintenance, replacement, and insurance of those additions that constitute “furniture.” The agreement may also include a clause requiring owners to plant more grass if a gazebo or a child’s swing damages the grass.

For townhouses, if an owner wants to add a BBQ kitchen, for instance, the above procedure has to be followed.

In addition, the board would be wise to have the owners agree in writing to a limit on the hours of use, with appropriate penalty if compliance does not follow, including removal of the entire installation. Neither should excessive noise or odours be tolerated at any time.

Recreational Amenities

These vary and include an exercise room with its equipment, pool area, sauna, billiard/ping-pong/bowling areas, TV rooms, movie/theatre room, BBQ, etc.

Every resident has free access to the gym and pool and, depending on the declaration and the rules of each condo, the TV room and other recreational facilities.

In most condominiums, recreational venues are open only during day time and evening hours.

Certain amenities have to be reserved and this generally includes bowling alleys, party rooms, movie theatres, and guest suites. Reservations are taken by the concierge or superintendent and a form may have to be read and signed, a deposit paid, and a rental fee may also be required. The deposit will be entirely refunded once the concierge has carried out an inspection and found nothing that needs to be repaired. (Click here for Rental Fees, Guest Suites & Party Room Fees)

Owners and tenants have to familiarize themselves with the rules pertaining to each amenity.

Rules generally:

  • Limit the number of guests and the number differs depending on the facility involved
  • Pertain to safety and security so that people do not get hurt, such as “no diving” sign in a shallow pool
  • Prevent food and liquids (except for water) from being consumed in order to keep amenities clean and prevent damage or injury
  • Determine the age at which children can safely use a facility or equipment
  • Pertain to hygiene, such as not walking with street shoes and not allowing children who are not toilet trained in the pool areas
  • Suggest proper attire, such as not wearing bathing suits anywhere else except in the pool areas

Resident Parking And Guest Parking

Most condos have one parking space per unit. The space is either included in the sale price or the owner has to buy one at additional cost. Some condos have fewer spaces than suites and include a space only for larger units; other spaces are sold individually on a first-come, first-served basis. Parking spaces are generally exclusive-use common elements.

However, in some condos, parking spots may be sold separately and are individually owned and registered accordingly: They are not common elements. As such, their maintenance and repairs may be the responsibility of the owner.

Other condos have additional parking spaces which are rented to residents, as can be the case for lockers that a corporation builds in areas that serve no function.

Visitors’ parking is reserved for guests. Residents are never allowed to park in this area unless there is an exceptional circumstance.

For instance, a new arrival to Canada rented a suite and was told by the owner that a parking space was available. But he soon discovered that the owner had already leased it to another resident. The manager kindly put him in the guest parking until he could lease a space from another resident.

The general procedure is for visitors to be allowed in by their resident hosts and obtain a parking permit. At that point, they are allowed in the area of the garage reserved for visitors. 

Overnight permits are also granted. These may be limited to 9 or so nights per month to avoid the situation where a “guest” is actually a resident who has not been registered.

Townhouses may have an outside parking area reserved for visitors. But these areas are difficult to control because anyone can park, especially near a bus route or subway station. As well, residents often use these areas for their second car, which is against rules.

In one townhouse complex, the management distributes 5 to 10 permits yearly to residents. Their guests have to place the permit on the dashboard. All other cars are ticketed by the parking authorities. Cars that remain for a week are towed away after notices are placed on their windshield.

Noise Transmission

Noise too easily carries in buildings. There are several problems in the building code that allow for this situation. 

For instance, a fire wall between suites is a good way to prevent noise transmission. But such walls are often partly or entirely missing. In other cases, plumbing and wiring create gaps through which noise escapes. Furthermore, although cement is a good firewall between floors, the type of cement now used can actually be a great noise transmitter.

Drywalls in newer buildings do not absorb noise as well as drywalls that were used in older buildings. In addition, people’s love for hardwood floorings magnifies the problem, even though there is an underpad between the cement and the wood. This is why condos require that 65% of the area of a laminated floor be covered by carpeting to absorb noise. Click here for Noise Problems)

Building Code Problems

At least in Ontario, and this certainly applies to the rest of Canada, the quality of materials going into condo buildings should be higher.

As well, government supervision of buildings while they are being constructed should be less relaxed. We can talk here of inspectors who are largely absent, who are not on sites when insulation is inserted (or not inserted), or are turning a blind eye to defects. Or inspectors who might be on too friendly terms with builders.

Not unexpectedly, the Building Code is one area of legislation that is heavily influenced by various lobbies--as is the case for condo legislation.

One major area that should be addressed is that of sound proofing. High-rise condos, in particular, are vertical cities where a large number of persons live in close proximity to each other. Better sound proofing is necessary in order to make life bearable. It is not “normal” that one hears neighbours talk through the wall, listen to their music, their footsteps, their lovemaking, their quarrels, and so on.

People shouldn’t have to live worrying about having to be as quiet as mice!

Noise, studies have found, has a detrimental effect on both physical and mental health. There is absolutely no excuse when a rich country such as ours builds condos that act as sound transmitters rather than allow residents to enjoy the peace of their unit, as stipulated in the Condo Act.

Finally, the Ontario new home warrantee program (Tarion) needs to be tightened up and owners offered better protection as consumers.

Other FAQs About Your Building & Your Unit

Why Can’t We Get A/C or Heating Whenever We Want?

Unless each unit has its own heat pump or equivalent system, heat and A/C is a central system based on water circulating in pipes. This water is chilled in the warm season and heated in the cold season and contains some appropriate chemicals. In many buildings, this system has only one loop: The water comes down one pipe which then loops at the bottom and the water is pumped back up on the other side of the building.

Suppose that the system is on heating and there is a hot spell in late April. At that point, residents are understandably hot and bothered, especially those with a south or west exposure. They phone the office and ask, “When is the A/C going to be turned on?” And the answer may be “around May 10.”

Why not now?

Because the water in the one loop is hot. It would take several days to let it cool down, or drain it, before the A/C is started. By that time, the cool weather will have returned...and people will complain of being too cold!

And it’s the reverse at the end of the warm season: Some days get colder but the system just can’t be switched on in case the warm season resumes.

Managers check weather forecasts and have to use their judgement to decide when to switch to A/C or to heat. It is rare that the timing of the decision satisfies all residents...

What’s Fan Coil Maintenance?

What’s Fan Coil Maintenance?     

In newer buildings with a central heating/AC system, fan coils may be located behind a panel in the wall of one or two rooms in each suite along with the thermostat. At the bottom, there is an air filter with the in-vent and above is the motor for the fan and coil with a pan under to prevent condensation from dripping. The exhaust vent is above. A picture is provided below.

Fan Coil Maintenance Diagram

When the thermostat is on A/C or heating, the fan simply re-circulates air that is already in the room after the system has either cooled it or warmed it. The air does not come from outside. This is why, if this system is to work properly, no furniture should be placed in front of the grill where the air filter is. This is where the air goes in to be cooled down or heated up.

It’s a good idea to air a room regularly by opening a window but this should be done only when A/C or heating are not on. Otherwise, energy will be wasted and the motor will work harder and burn out prematurely.

Maintenance of the fan coil is carried out by a certified contractor, often a plumber, or by the same contractor who has the contract to maintain a building’s large systems. The contractor removes the filter and changes it. Then he vacuums the system, lubricates it, checks for leakages and the general functioning, including the thermostat. Maintenance is usually done twice a year. (Click here for Right to Notification for Entry into Unit)

This maintenance is necessary for proper functioning and to prevent leakages as well as mould formation. When furniture is placed in front of the air intake (where the filter is), the system can’t get air in and the motor may burn out prematurely.

Fan coil maintenance is generally owners’ responsibility and they should pay for it. (Check the building’s declaration.) However, managers are well aware that most owners would forget about it, may not hire a proper contractor, and would end up paying far more individually than warranted. As a result of neglect, the entire system would deteriorate much more rapidly. This is why many condominiums do it on behalf of owners and include it in the general budget.

Questions About Air and Ventilation

Why is There So Much Air Coming in From the Door of My Suite?

Unless you open your windows, there is no fresh air that naturally comes in your suite. As a result, air would become stale and unhealthy. As well, in winter, condensation on windows could be a problem and mould could develop.

Air forced into corridors comes directly from the outside. It is “fresh” air. The pressure of this air is designed to compensate for air that goes out of your suite through the kitchen and bathroom exhaust fans. That’s why doors are designed to let some air in all around, especially underneath.

So the air that comes in under the suite door helps a suite from being too humid or the air too stale. It also helps prevent condensation on windows in winter.

When corridors’ ventilation system is controlled, more air is generally pumped in during the days than at night. However, not all buildings have control over the system.

Where Does the Air in the Corridors Come From?

As mentioned above, it comes in directly from the outside from air intake units on the roof. For lower floors, air may come from side units on the ground or basement units that are hidden under large grills.

This corridor air is heated in the winter and constitutes a good portion of the costs of heating in a building. In summertime, the air is cooled and constitutes a sizable portion of the electricity used in the building. (Click here for Energy Savings Measures)

In order to save on energy use and cut costs, corridor air is not warmed to the same extent as is the case in suites during winter time. Similarly, in summer, the air is not cooled to the same extent as it is in suites.

Questions About Drain Problems

Drain Clogged?

A recurring and costly problem in condo high rises is that residents pour cooking oil, grease, hair or food and even kitty litter down the drains or even the toilets. Not only will the kitchen and bathroom drains clog but this may also cause a back-up in other residents’ kitchens.

This situation frequently damages suites and plumbers have to be called and may have to spend hours flushing stacks (pipes). This constitutes an expensive situation and may contribute to a rise in fees.

Managers post notices explaining how to dispose of cooking oil and grease. Such notices are required at least twice a year, especially before certain holidays. It is a good idea to provide translations for larger groups of residents who may not know English or French fluently.

Please remember that cooking oil and kitty litter thrown down the sink or toilet end up being very costly in terms of repairs.

Please, let cooking oil stand and solidify in pots.  Then wrap this solid in a paper towel, throw in the green bin.

In pans, sponge off cooking oil and grease with paper towels and throw in the green bin.

Kitty litter should never be flushed down the toilet or down the kitchen sink. It will solidify into something looking like cement and adhere to pipes. This can be catastrophic as pipes may need to be replaced with a lot of wall and ceiling destruction.

Recipe for Drain Maintenance

It’s helpful, at least once a month, to pour the following environment-friendly mixture down the drain to prevent clogging:

Pour one cup of baking soda down the drain. Then pour one cup of vinegar, preferably hot (microwave it). Wait about 5 minutes. It will produce a small “volcanic” sizzle. Then add 4 cups of boiling water. This can be repeated.

If this does not work because of stubborn clogging, then, before going to bed, mix one cup of baking soda with one quarter cup of salt, and pour it down. Then add one cup of boiling water. This mixture should do its work during the night. The next morning, flush out the drain with hot water from the tap for about 20 seconds.

Drain Backed Up?

Is this your problem or that of the condo? If the drain backs up when you are not using the sink, call the management office or the superintendent.

If the drain backs up when you are using the sink, that’s probably your own personal problem and responsibility. First, try the "recipe" in the previous section above. Then, try a plunger. If none of this works, a plumber may be needed. The manager or superintendent may be able to give you a referral. But you have to pay the plumber directly for this service.

Questions About Water Issues

Why Is Water Running Down My Windows in Winter?

This probably means heavy condensation. This happens when residents have thick drapes, window shades, or shutters down for the night. The next morning, it’s a good idea to push the drapes open because the window may be covered with a thin layer of ice that soon turns into water. If not blotted out, this water will run behind the wall and window sills and result in mould.

Windows that are heavily draped, a room air humidifier, and lack of fresh air circulation all contribute to condensation. There is usually nothing that the manager can do about it. This is what is called a “lifestyle problem.”

Toilet Overflowing?

Quickly open the cover and lift the float. Try putting the stopper/plug or flap down. This failing, turn off the water for the entire unit and have repairs done.

In the event that damage occurs to the suite below, you may be responsible to pay for the deductible. (Click here for Insurance) But owners are certainly responsible to repair the flange in the water tank. Failing to do so may result in the condo corporation doing it. In the event of non-payment for this service, a lien may be placed against a suite. (Click here for Liens)

Where Is the Water Shut Off?

Suites and townhouses come with individual water shut offs. In a townhouse, it may be in the basement or on the ground floor. Larger suites, such as penthouses, may have two or three separate water shut offs.

Generally the shut off is under a sink or in the laundry room. Ask the management office where it is and how it works. A special “key” usually comes with each suite. But when a suite has had several owners, the key may have been lost. Everyone should have one. The management office may sell some or may order more.

Water Freezing in Pipes?

During winter months, if there is no heat coming into a unit, water may freeze in pipes, a pipe may burst, and cause huge damage. This is generally a problem that occurs in townhouses. Example:

Just before going on a two-week vacation, a mother sends her 18 year-old son to the basement of their townhouse to make sure that all the lights are turned off. So long as he was at it, the young man turns off the thermostat and fails to tell his mom. One afternoon, after a warming spell, the neighbour returns home to find herself 6 inches deep in water in her basement study. She quickly phones a board member who has a master key. They go in and find that the water in a pipe had probably frozen, the pipe burst and then water came pouring down during the warm spell. The suite itself is already one foot deep in water.

The morale of this real-life example: Never leave home during the winter without letting a minimum level of heat in the unit.

What’s a Fob? A Card Reader?

The picture below shows both a fob and a card reader. In short, the fob is a “key” to common elements. It is programmed by the manager so that, if i lost or stolen, it can be neutralized and no one will be able to use it. It’s a good security feature.

Residents simply swipe their fob against the card reader and the card reader will read to see if a resident’s fob is acceptable; if it recognizes it, it will give the green light to open the door. At the same time that the card reader is activated, the security system at the concierge desk will indicate the unit number entered and the exact time of entry.

Fob

Condo Auditors & Lawyers

Auditors

Condo corporations generally have a contract with an auditor who works on behalf of corporations independently of boards of directors and management companies. The auditor is the only professional who is elected by owners in Ontario. The auditor may be selected by boards or management companies after due diligence has been carried out in terms of search. It is also possible to have an owners’ search committee select an auditor and present this choice to the AGM. Whatever the process, the auditor has to be elected at the annual general meeting.

Auditors cannot be removed by boards or managers or replaced unless they resign between annual meetings. An auditor who resigns has to be replaced but the replacement has to be elected at the next annual meeting of owners. 

In Ontario, small condos with less than 25 units are not required to have an auditor because this expenditure might constitute a financial burden. However, for this to be the case, all owners have to agree in writing before the annual general meeting. Then, there will be no auditor or audited report for that one year. The same process has to be repeated each year because, at some point, owners may be concerned and decide to have an independent auditor examine the books.

What’s the Auditor’s Role?

The role of an auditor is to verify the corporation’s accounts (work orders, invoices, contracts) against the financial statements and yearly budget. The auditor must examine the minutes of meetings held by boards to make certain that boards have duly approved large expenditures as well as new contracts.

In addition, the auditor has to:

  • Ensure that the board is complying with the reserve fund study
  • Verify that the level of reserve funds follows the general outline of the board’s implementation of the recommendations contained in the study
  • Verify that some revenues and expenditures, such as locker rentals or directors’ remuneration, are based on proper by-laws
  • Provide a written auditor’s report before each annual meeting so that this report is included in the AGM’s package of documents that owners receive before the meeting
  • Report findings and conclusions to the board and owners at the annual general meeting

Since this website first appeared, a few owners in condos where it is believed that fraud is taking place have asked why auditors do not detect and report boards' and/or managers' fraud.

Fraud can be difficult to detect. (Click here for Misuse of Funds and Fraud) Three owners reported phoning their condo's auditor on this issue. In all three cases, they were rebuffed by the auditor. One even threatened to let management know if the owner pursued the issue.

It is suggested that owners should at least be able to approach auditors and be assured of confidentiality--because auditors are accountable to the corporation and not to the board exclusively. A mechanism should be put in place in instances where owners suspect fraud and are also rebuffed by the police.

Lawyers

Most condo corporations retain a lawyer or a legal firm specializing in condo law, under contract or simply as consultants. Law firms are chosen by boards and/or management companies. In principle, so as to avoid potential conflicts of interest, neither managers nor directors should be linked by family, friendship, or employment with this firm.

Owners do not have a vote in this decision.

Lawyers’ most common task is to prepare and register liens against owners who are in arrears. They also prepare and register by-laws and powers of sale. They help condo corporations with mediation, arbitration, and court orders involving owners and residents.

In some condos, lawyers chair the annual general meeting. This is, however, an expensive way of carrying out an AGM! As well, other issues may arise as a result: Click here for Issues With Lawyers.

Owners or individual board members cannot consult the condo’s lawyer. When they do so, they have to pay the fees themselves, even when they are trying to resolve a problem caused by managers or boards. In contrast, managers and boards have easy access to the condo lawyer against owners, when needed. Furthermore, the condo pays these legal fees—not managers nor individual board members.

As well, it is generally easier for boards to obtain a compliance order from the Court against a resident than it is for residents to obtain one against managers or boards. The main reason for this is that a lawyer has to be consulted and the board has free access to the condo's law firm—paid by all owners’ fees. (In a way, this makes sense because a condo would otherwise become responsible for many residents’ futile legal actions.) In contrast, owners have to pay their own legal fees.  

However, an owner who wins an arbitration or a Court case against a condo may or may not have his or legal fees reimbursed by the corporation. In fact, an owner who has recourse to the Court  under Section 135 of the Condo Act, for non compliance, will most likely end up paying for all fees. This is unfair in some ways because Boards who do not comply with the Act present a problem for the entire corporation and all owners will benefit, in theory, from the action of the one owner who ends up responsible for all fees.

Owners' Problems of Legal Recourse

Currently, apart for non-compliance, as stated above, in the event of an owner-condo conflict, the only remedy that owners or boards of directors have resides in mediation and arbitration. Most lawyers agree that, for owners, this is a costly procedure that may not produce the anticipated results. Understandably, few owners avail themselves of these remedies.

Overall, it is actually difficult for individual owners who have a problem with their condo corporation to find a lawyer who is not working for a condo or a management company—a lawyer independent of any interest elsewhere. 

In a moment of revealing candour, a lawyer provided the following example of conflict of interest:

An owner consulted him about a water penetration problem that had been ongoing for years. Water penetrates around baseboards and spreads on his floors during and after each strong rain. The management has refused to do anything citing lack of money and the board has supported management in this response.

The lawyer in question is in a bind because, on the one hand, he would like to do justice to this potential client. But, on the other hand, although he does not work for this particular condo corporation, he does work for several condos that are managed by the same management company.

He does not want to jeopardize his relationship with the management company, even though he is quite cynical about them, because he may risk losing some contracts. But he does not want to fail this owner either. So he refers the owner to another lawyer but, unfortunately, this lawyer has no expertise in condo law. Will this owner ever receive justice?

What we need are groups of lawyers specializing in condo law who serve owners exclusively—and never corporations nor management companies--so as to avoid potential conflicts of interest.

Many owners have written to complain about lawyers who stand by unqualified and even unethical boards and managers against owners. (Click here for Issues with Lawyers) However, it should be pointed out that it is much less likely that condo lawyers will abuse their office against owners when a condo has an efficient, experienced, and ethical board. Still, the Condo Act should specify more clearly lawyers' duties toward corporations and individual owners; the Act should highlight the dangers of conflict of allegiance and of interest.

Therefore, the Act needs to clarify and specify the role of condo corporations' lawyers. Indeed, they are supposed to act in the best interest of the entire corporation. However, it is very clear in too many letters sent by helpless owners that, when standing by unethical boards and managers against owners or a particular owner, these lawyers are de facto representing boards and managers rather than the interests of the corporation. They help maintain bad boards, which goes against the best interest of the corporations so afflicted.

Problems encountered by owners because of improper conduct in these regards constitute 15% of all letters received, which is enormous because, as of the time of these revisions in late August 2012, 1,600 letters had been received. Thus, 240 complaints against condo lawyers were involved. One law firm was particularly overrepresented in these complaints as were several other lawyers from other firms. However, one firm in particular was never mentioned negatively and this hopefully reflects stronger ethical principles.

Condos & Insurance

Each condo corporation, whether big or small, has to carry insurance and all owners and tenants have to carry personal insurance.

Condos' Insurance

The Condo Act of Ontario mandates that each condo corporation “obtain and maintain” insurance in the event of “damage to the units and common elements that is caused by major perils” or other perils specified in the declaration and by-laws. Obviously, a condo that includes a marina, extensive grounds, or a roof-top party room will contain a somewhat more extensive coverage than other condos.

What are the “major perils” that need to be covered, according to Section 99(2) of the Act?

Fire, lighting, smoke, windstorm, hail, explosion, water escape, riots or civil commotion, impact by aircraft or vehicles, vandalism or malicious acts.

The perils that most commonly occur in condos are water escape in terms of leaks, overflows, and pipes bursting, vandalism, and fire/smoke. Damage from drain and sewer backups should also be included.

In addition to perils, the condo insurance covers liabilities for injuries caused by accidents and acts of omission and commission in common elements. (For what are common elements and responsibilities,  click here into FAQs About Your Building & Your Unit)

Finally, the insurance carries liability for directors in the event that they are sued by owners, tenants, guests, employees, or even contractors and insurance companies as a result of their duties on the board. The insurance will cover them, however, only to the extent that they had done due diligence and acted in good faith while carrying their duties.

For instance,

In a high-rise condo, the entire board had been warned that a security person spent time in a suite after hours, against regulations. They also knew that heavy drinking and drugs were taking place in that suite. But nothing was done to discourage the staffer from his visits. At one point, he spent an entire night in the suite and, when he resumed his shift the next morning, he was too stoned to notice that an elderly man was lying unconscious on the floor of a corridor leading to the parking area in full view of a camera. The man had suffered a head injury and, when located two hours later by a resident, it was too late. He died in hospital several hours later. The family sued the board and the condo insurance company eventually refused to pay. Instead, the insurer went after the individuals who had, at the time, been on the board, and the family also sued the security company.

A new president and board had received a note from a previous treasurer explaining that some pipes between two particular floors had long ago been replaced by poor quality material and were cracking. It was urgent that they be replaced. Nothing was done. Six months later, one pipe did burst and caused considerable damage to walls, ceilings, and carpets in corridors and in nearby suites on several floors. Although the condo insurance initially paid for the damage (as did owners’ insurance for their personal possessions and upgrades), the insurer, upon investigating the matter, eventually turned against the board because the documentation clearly indicated that they had not done due diligence.

Such cases are relatively rare but they do happen and, with the number of condos rising, and insurers less well off financially, it is reasonable to expect that such situations will become more frequent.

Who pays for what when something occurs in a suite is at times a subject of confusion. Often, certain situations that are covered under the condo’s insurance in one building are covered by an owner’s insurance in another one. This is because the contents of a condo’s declaration and insurance by-law can dictate some of a condo’s and owners’ responsibilities.

Of course, a condo’s insurance pays for any damage that occurs in or from the common elements, unless this damage is the result of an act committed by a resident or a guest and it can be proven. That person would then be responsible.

As well, when a pipe bursts in the common elements and damages a suite or an owner’s locker, the condo insurance will pay for the repairs if the cost is above the deductible. Similarly, water damage from a suite to another below or adjacent has to be covered by the condo's insurance or the responsible suite owner. But the condo will only pay according to what is specified in the standard unit by-law. (Click here for Standard Unit By-Law)

Standard Unit By-Law

When insurance cases are very complex, recourse to legal expertise is advisable.

Owners' Insurance

All owners should have and maintain a comprehensive condo insurance policy to cover damage to their personal possessions as well as to their upgrades and to cover any damage that they might incur to a suite below or adjacent to theirs as a result of an accident, negligence or, as stated in a condo’s declaration or insurance by-law. This insurance should include a sufficient amount for liabilities in the event of an injury in the suite, such as if someone falls as the result of a toy left on the floor. (Click here for further information in Tenants and Landlords.)

Other points of interest:

  • Insurance should be renewed before its annual expiration date.
  • Condo insurance is not as expensive as insurance for a non-condo house.
  • Owners should present a copy of their insurance to the management office of their condo.

When taking an insurance policy, owners should familiarize themselves with the insurance by-law and standard unit by-law of their condo to make sure that their insurance covers what the condo policy does not cover.

For instance, although most condos do not cover upgrades, some condos do not cover other parts of units, such as floorings or countertops.

All residents should have a car insurance policy. For instance, cement may detach itself from the garage ceiling and fall on a car and dent it: A garage door may malfunction and damage a car.  Condos are not responsible for such damage unless, of course, the damage results from negligence to carry out repairs in a timely fashion on the part of the corporation.

Condos are not responsible for any possessions left in cars, on bike racks, or in lockers. Owners’ home insurance or car insurance should cover these.

WARNING!
Always use the remote control or entry card before entering a garage.

Indeed, a problem that frequently arises concerning garage doors is that residents follow others rather than use their entry card or remote control—despite notices to the contrary.

Generally, the motion sensor will detect the additional car and the doors will stay up or climb back up. But there are occasions when this does not happen and the door comes down on a vehicle or a cyclist.

The condo is neither responsible for injury nor damage because a basic safety rule has been disregarded. Monitoring cameras and entry cards provide the timing as well as visual evidence of these occurrences.

Tenants' Insurance

Tenants should carry insurance for personal possessions and liabilities to complement that of owners.

However, if tenants are not certain whether their landlord has comprehensive insurance, then they would do well to take a complete condo insurance package covering upgrades and liabilities.

For their part, owners who are landlords should make sure that their tenants have insurance for their personal possessions.

Landlords would do well to maintain an insurance for the condo itself and the upgrades because, if a tenant does not carry that kind of insurance or stops paying the premium, then the owner may have to pay a great deal of money if damage occurs to the suite and is not covered by the condo corporation’s own insurance.

What’s a Deductible?

This is the amount that an owner (or a condo corporation) has to pay before the insurance kicks in. The deductible is generally negotiated between the insurer and the person who is insured and can be changed from year to year. The higher the deductible, the lower the insurance premium. (The premium is what a person pays each year to maintain the insurance.)

An insurance deductible for a suite may be $250 or $500 or even $1,000 or $2,000 depending on the amount of coverage that an owner wants.

Let’s take the example of a deductible of $500. If an owner incurs a $450 damage to her suite, this amount is lower than the deductible. This means that this owner has to pay for the damage and cannot claim anything from the insurance.

On the other hand, if the damage amounts to $550 and the deductible is $500, it would be advisable that the owner pays the $550 and not claim the small difference of $50, or any other small difference, so as to avoid having to report the damage to the insurer. Why? A claim may result in higher insurance costs a year or so after.

Policy holders should never report damage to their insurance company when they do not make a claim. Why? So as not to be seen as a risk to the insurance company and perhaps get a raise in premium the following year.

Tenants & Landlords

Who is a tenant’s landlord: The owner or the condo? The owner of the unit is. The lease agreement is between the owner and the tenant. The relationship between landlords and tenants is still governed by the Residential Tenancy Act, 2006, in Ontario and a similar act in other provinces and territories.

However, within the building itself, the Condo Act has precedence and landlords are responsible to make sure that their tenants follow condo rules.

 

Laws

Are You a Tenant?

  1. Ask the owner of your unit for a copy of the rules. Tenants follow the same rules and have the same rights as owners, such as access to all amenities.
  2. Make sure that the manager registers you. In fact, the manager should receive a copy of your lease along with proof that you have personal insurance.
  3. Yes, even tenants need insurance for personal possessions and liabilities. (Click here for Insurance)
  4. Some condos have a rule that prevents leases that are less than 3 to 6 months.
  5. The mailbox is for your exclusive use and not that of the landlord.
  6. Disruptive tenants can be evicted after certain procedures have been followed.

In the unlikely event that an owner fails to pay his or her maintenance fees, a condo can apply for what is called a “notice of attornment.” The tenant and the owner would receive a copy and, as a result, the tenant would have to pay the part of his rent that will cover the condo fees. This notice provides details of what tenants should pay to the landlord and to the condo, respectively.  (Click here for Garnishing Tenants’ Rent & Power of Sale)

When an appliance breaks down, it is the landlord who is responsible for repairs, unless the tenant has an agreement with the landlord. But it’s not the condo that is responsible. A condo is different from an apartment building in many ways and this is one of the differences.

The sections on Insurance may be helpful. (Click here for Insurance) The section on common elements may also be of help. (Click here for Who Is Responsible for Maintenance, Repairs & Alterations?) As well, perhaps the section on common unit problems may come in handy one day. (Click here for FAQs About Your Building and Your Unit)

Are You a Landlord?

Then, you may want to read the above sections for tenants as well. Landlords are responsible for:

  • providing a copy of the lease to the condo’s management office;
  • having their tenants fill out an information form;
  • providing tenants with a copy of the rules;
  • making sure that tenants have keys and entry fobs.

Keys

If you own a parking space and/or a locker, the lease agreement should specify if you are renting these to your tenant. Some owners rent them to another resident instead. Just make sure that management is informed.

Some landlords keep the locker or the parking spot for themselves or friends. That’s perfectly acceptable provided you or your friends live in the same condo as your tenant. However, if you reside elsewhere, check out the condo’s declaration: Some condos do not allow non-residents to use residents’ parking and locker. This is generally done for reasons of security.  (Click here for What’s a Condo Declaration?)

As owners, landlords may find it useful to click here for: Condos’ Financial Structure; Owners’ Money Facts; Owners’ Rights and Responsibilities

Are Condos Family Friendly?

Yes, condos can be very family friendly. It is a North American myth that families need big houses to thrive and that children need a lot of space to develop well. None of this is supported by research evidence. This said, however, in the past few years, particularly in downtown Toronto, developers have focused on building smaller and smaller units in order to cater to investors who are looking for rental accommodations for singles. Very small spaces are definitely not family friendly and may even contribute to lower our fertility rate.

Paradoxically, detached houses have become bigger and bigger at a time when they have become emptier and emptier: Families have fewer children and, in a majority of Canadian families, both parents work. During the day time, children are in school.

Families that live in large houses actually have less time together because each family member spends most time alone in his or her room. Nowadays, kids have a cellphone, television, computer, Internet, and game system in their own bedrooms—and this is where they spend most of their time. In large houses, some parents now have to phone or text their children to get them to come down to eat...!

Opportunities for Children

Condos may provide more, not fewer, opportunities for children.

  • Sociability. Children living in a condo, especially a high rise, meet people on a daily basis in corridors, elevators, lobby and parking. They can learn to interact with others, how to be polite or considerate. They may become less shy and more sociable.
  • Diversity. Condos generally have a diverse population, especially in large cities, so that children are more likely to meet people from all ages and various backgrounds.
  • Peers. There are several other children around in the same building. This situation can help them make new friends. (Click here for Factors to Consider)
  • Physical Activity. Many condos have a pool so that children can have fun while exercising. As well, many condos are located near a playground or green space.

Opportunities for Parents

Living in a condo may offer many advantages for parents in their role.

  • Less Work. There is much less housework to be done in a condo as well as less ground work outside. This gives parents more time for their professional work, family and recreation.
  • Easier Access. Most high rises are now built along or near a transit route: Parents and children spend less time commuting or in cars. It’s also easier to access grocery and drug stores.
  • Easier Supervision. It may be easier to supervise children’s social activities in a condo because it is a fairly self-contained vertical neighbourhood or a townhouse area that is quite compact. It’s easier for parents to keep track of their children’s whereabouts.
  • Easier Internet Monitoring. It is easier to monitor children’s Internet activities because rooms in a suite are near the others. We are familiar with the dangers of the Internet for some children. Parents are bombarded with tips on how to monitor their children’s activities on the net. This is more easily done in smaller housing units than in a “monster” house.
  • Sociability. Mothers at home with small children nearly always meet other mothers in the same situation. In some condos, enterprising mothers exchange services and babysitting, arrange meetings, or go to a nearby park together.
  • Car Pooling. Car pooling for schools can more easily be arranged once parents know each other.
  • Moving. When the family expands in size and age, it is easy to buy a suite in the same building so that children don’t have to change school or neighbourhood.

Opportunities for Extended Families

Do you need your parents to help in babysitting your children? Do you want your children to get to know their grandparents better? Do you want to help your aging mother or a parent who has become frail? While at the same time neither you nor your parents want to share a same dwelling?

Condos are ideal for this. I personally know several young parents whose own parents have bought a condo unit in their building. Each family has its own space. Yet, all they have to do to help each other is take the elevator up. No need dressing up and jumping in the car to visit grandma.

Similarly, condos are ideal when a mature couple or person wants to help aging parents. Here as well, I know of several cases where adult children have bought a suite for their parents or their mother in their building. Others have bought a suite in an adjacent building.

Condos are quite safe for older persons: There are no stairs; help in opening outside doors is readily available; accessibility to the street and nearby stores is easy.

Cautionary Remarks 

A condo home is like a home anywhere else: location counts. Parents or would-be parents should look into the surrounding neighbourhood just as people do when they buy a detached home. Some areas are better than others and the same can be said about schools. (Click here for Buying a Condo?)

Please visit  or phone the neighbourhood school to make sure that your children can attend it. It's not always the case in some areas that have seen a lot of recent development. Prospective owners are too frequently misled on this issue by real estate agents.

As well, condo living does not mean that parental supervision is not necessary. For instance, small children should never be left alone on a balcony or terrace on floors above ground level. They could climb and fall.

Neither should they be left alone in elevators. Unless a building has cameras in the elevators, children below the age of 14 should probably always be accompanied by another person.

Underground parking areas are not a safe place for a child alone.

Even condos that are in a good location report incidents of teenagers and young adults who drink or do drugs in stairwells, locker rooms, and underground hallways leading to parking areas.

In other words, parents have to exercise the same caution and vigilance over their children that they would in other living environments. They only need to adapt their vigilance to the type of condo they live in.

Finally, condos are not properly sound-proofed. This fact and the addition of wood flooring mean that sound carries. Parents with active children should carpet the children's bedrooms, corridors, and areas where they spend most of their active time--otherwise neighbours, particularly those below them, will constantly hear their every move. And this cautionary note applies to adults as well!!!

 

 

Archway

Links and Bibliography

Links to Condo Acts

Other Government Links

Non-Government Links

Books

  • Benoit, A. M., Joli-Coeur, Y., et Yves Papineau. 2006. Le Condo: Tout ce qu’il faut savoir. Montreal: Wilson et Lafleur.
  • Gardiner, J. R. 2001. The Condominium Act, 1998 – A Practical Guide. Toronto: Canadian Condominium Institute.
  • Herskowitz, H., and Freedman, M. 2001. Condominiums in Ontario: A Practical Analysis of the New Legislation. Toronto: Law Society of Upper Canada and the Ontario Bar Association.
  • Hyman, G. 2008. 6th ed. Condominium Handbook (Ontario). Toronto: Canadian Condominium Institute.
  • Joli-Coeur, Y., et Papineau, Y. 2007. Les coproprietes en difficulte: Constats et solutions. Montreal: Wilson et Lafleur.
  • Lincoln, M. G. 1999. The Condominium Self Management Guide. 2nd ed.
  • Loeb, A. 2009. 3rd ed.The Condominium Act: A User’s Manual. Toronto: Carswell.