Specific Legal Issues
When Is It Time to Update Rules?
From the CCI Review 2022/2023-4 May 2023 issue of the CCI London Chapter
As part of conducting business for the condominium corporation, the Board of Directors is responsible to make, amend or repeal, and pass the rules which are required to be reasonable and meet the criteria of section 58 (1) of the Act. They determine the living status on the property and that includes enhancing the lifestyle, protecting the property values and creating cooperation among the residents. Under section 17(3) of the Act, condominium corporations have a duty to take all reasonable steps to ensure that everyone who resides on the property, without exception, complies with the Act and the corporation’s governing documents. The hierarchy of governance in condominium is set and exists in the following order
- The Condominium Act, 1998 (hereafter the Act);
- The declaration;
- The by-laws; and
This means rules must serve the purpose of either:
(a) promoting the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or
(b) preventing unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation. 2015, c. 28, Sched. 1, s. 54 (1).
Directors are encouraged to review the corporation’s rules periodically. Time, circumstances and demographics will conceivably determine the need to review and amend rules to address such issues. Even the pandemic may have created issues of non-compliance that became the norm but are contrary to the corporation’s governing documents.
Owners may present their concerns for board scrutiny and amendment. Boards are encouraged to consider their concerns. For example, more children on a property might create a decision to review or enhance rules relative to parking, speeding on roadways or playing on the common elements to create additional safety for them. Even the pandemic may have created issues of non-compliance that became the norm but are contrary to the corporation’s governing documents.
Rules, unfortunately, can create contentious discussions in condominiums and in business. We have all experienced conflict that evolves by non-compliance to rules and regulations. There are rules that can touch a palpable sore spot in some. However, contrary to popular opinion, rules are not created to make your lives more difficult.
Note: Under the Act (section 46) of the condominium corporation can request that the board of the condominium corporation call a meeting to discuss and/or vote on a particular topic. These meetings are called owner-requisitioned meetings and all owners can attend.
Is it the rule itself OR the manner in which it was brought to task about a noncompliance that offends the most?
The Condominium Authority of Ontario (CAO) is focused on consumer protection and supporting healthy condominium communities across Ontario. They provide assistance with “HOW-TO guides and letter templates” to positively address common issues in condominium living. The Government of Ontario has created a number of forms to be used under the Condominium Act, 1998. Some of the forms are mandatory and must be used and some are optional. Make sure you have the correct form to proceed. You can find them here.
The Condominium Authority Tribunal (CAT) has made it clear that documentation by the corporation will be required in the event of a dispute. Make sure that every communication is dated and kept on file. Owners experiencing the process for non-compliance would be wellserved to maintain their own documentation as well.
The CAT has noted in some cases where rules that have not been not been enforced by the corporation over a period of time, they may become unenforceable and require the corporation to take additional steps before being able to enforce compliance once again. Experts who have presented at CCI educational events have recommended that rules be reviewed by the Board (some have recommended annually) to either amend them, or create more suitable ones that can be enforced fairly and consistently. Clarity of understanding in the language, where there is no room for misinterpretation, was a tip made by a director at the time.
Reporting non-compliance to governing documents is everyone’s responsibility. Perhaps your board has implemented a process where owners can report noncompliance to the manager, board or security on the property. Every report of non-compliance should be documented, reviewed and followed with decisions that are in place regarding steps to maintain compliance without exception and in a timely fashion.
Directors are always encouraged to review the CAO’s guided steps to common issue and contact them directly with questions about the information here.
Note: It is recommended to have a corporation’s lawyer review the rules to ensure they meet the hierarchy of governance, before sending them out to the owners
Note: Landlords are responsible for their tenants and residents are responsible for their visitors to ensure compliance.
Note: Where an owner may wish to present an issue to the board and/or manager, the CAO has provided letter/email templates to download and use. They can be found here.
Note: For more about Condominium Living and Corporations Governing documents, visit the CAO website here.
Note: Providing residents and owners with a copy of current Rules periodically as a reminder of their responsibilities as residents cannot go amiss.
Where there has been an increase in offensive behaviour against property managers, directors, other owners and/or contractors, corporations should be implementing harassment, violence and discrimination rules and policies that should be reviewed annually by the board and legal counsel to include new legislation that is enforceable.
It is also recommended boards avail themselves of legal advice so they are better prepared to handle these situations in the community. It is also recommended that owners be educated on what is and what is not acceptable behaviour on the property.
Trish Kaplan, CCI (Hon’s) is the parttime Administrator of the Chapter.; having served in the position from April 2003 to September 2010. She received the CCI Distinguished Service Award from CCI National in November 2006. Trish served as a director on the chapter board from 2010-2015 and was subsequently returned to the position of Administrator.
Trish is a condominium owner, served as a director in the corporation she resides in for a time and is a retired condominium manager.
Her experience in different areas of condominium continues to be a benefit to the chapter and its members.
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