Legal

June 28, 2023 Published by North Alberta Chapter - By Erin Berney

Legal Corner - Navigating Difficult Situations (& Board Members)

Condominiums are special types of communities with all the benefits and potential problems that can come from living in close proximity to other individuals. From time to time, conflict will inevitably arise between unit owners, unit owners and the board, and even between board members.

Condominiums are special types of communities with all the benefits and potential problems that can come from living in close proximity to other individuals. From time to time, conflict will inevitably arise between unit owners, unit owners and the board, and even between board members. But there are simple communication tools and strategies that may help avoid or minimize conflict and manage difficult situations when they occur.

Difficult situations may create “difficult” people

Identify whether the difficulty stems from a situation or an individual. Reasonable people can act in ways that may be perceived as difficult or unreasonable when in a stressful situation where they feel threatened. Remember that everyone has a right to quiet use and enjoyment of their homes and the right not to feel harassed or at risk in their home. Board members should question if the individual is truly being difficult, if the situation is just difficult, or if the problem might actually come from the board or condo manager.

Education and perception of bias

We all have unconscious biases and it’s important to self-assess to make sure we’re not adding to or even creating the problem. It’s important for board members to continually educate themselves on the law, the bylaws, and their duties to the corporation, but also on their communication processes and methods, so that they can better understand and educate owners.

Empathy and compassion are key

Remember that emotions tend to run high when dealing with people in their homes. Board members should attempt to put themselves in the owner’s shoes. If dealing with a violation, is this a first-time issue or a repeat violation? Ask whether there may be a cultural, language or religious component to which the corporation may need to be sensitive. If mental illness is suspected, try embedding community resources in notice letters, and offer other forms of support. Every condo likely has at least one owner that has at onetime struggled with a mental illness. People need to feel that they will not be judged by disclosing their challenges. Understanding what might bedriving or contributing to an issue is halfway to solving the problem.

Be responsive and don’t make decisions on the spot. Not all requests or complaints are either inherently reasonable or unreasonable. The Board has an obligation to review, investigate/gather additional information, and make unbiased decisions about all requests and complaints.

Clear and simple communication

Keep communications simple, accessible, courteous, clear, and conciliatory. Incremental escalation may be appropriate, depending on the situation, but the goal should be to educate owners first, and where necessary, secure voluntary compliance. Remember that owners don’t always know what the rules are. While every owner is deemed to have accepted and agreed to be bound by the bylaws, often they haven’t even read them.

Respond within a reasonable time. Thank the person for their suggestion or for notifying the board of a complaint in writing and advise that it will be included on the board’s agenda for consideration and response. The first meeting, interaction or communication can set the tone for the entire relationship.

Avoidance strategies (prevention is better than the cure)

Avoid “us” and “them” thinking. Boards that too tightly control their corporations by keeping information to themselves and not consulting owners run the risk of owners viewing the board as separate and apart from the owners. Be transparent in decision-making and in releasing documents and records, so owners understand what decisions are being made and why. Sometimes it’s also necessary to remind everyone that board members are also owners. Board members and owners are all in this together and have the same fundamental interests to protect.

Consult with and get a mandate from owners on important issues. The board should demonstrate that it listens. Owners often just need to feel that the board hears their concerns. If the board is considering a large construction project that requires a special levy or financing, convene a town hall or information meeting so that this information can be shared in advance.

Hold regular board and owner meetings, and keep accurate minutes describing who attended, what issues were discussed, what votes/decisions were made and what actions were or will be taken. Remember that owners are generally entitled tothis information, and if they think the board is holding something back, they may become suspicious and “difficult”. Make use of available technologies, such as online communication platforms, bulletin boards, and meeting hosts. Maintaining a single or limited channel for communications from and to individual owners will make it easier to preserve these records.

Establish clear communication boundaries to manage shared expectations for both owners and board members. Board members should refrain from engaging in hallway or elevator business meetings with owners, and owners should be discouraged from contacting board members directly at their homes. Managers should clearly communicate policies for responding to owners’ written requests and may also communicate that neither the manager nor the board will respond to rude communication or tolerate harassment.

Encourage owners to send all requests or complaints in writing to either the board or manager, as the case may be. In some cases, scheduling an informal meeting or chat to gather more information is appropriate. Set a time limit and agenda and communicate this in advance, then document the outcome in follow-up communication with the owner.

Legal as the last resort

Engaging legal counsel should always be a last resort, after all attempts at prevention and resolution have been made. Once it goes to the lawyers, it’s much more difficult to pull things back. Be mindful of how, when, and how far you escalate based on the circumstances and the individuals involved. The board should ask whether it has done everything it can and should do before taking the next step. This is particularly important as if legal expenses are eventually incurred, it will help demonstrate that the costs were reasonable and increase the likelihood of recovery.

In summary, condominium boards need to focus on educating and working together with their owners to prevent and resolve difficult situations from arising in the first place, inviting input and recommendations from the owners whenever possible. Difficult situations and people cannot always be avoided, but sometimes a difficult person is in fact created by the situation, and everyone can have a role in this. There are at least three sides to every issue, so it’s always important to try to find common ground. When faced with a difficult situation or a difficult person, remember that a condominium corporation is first and foremost a community in which all owners are not only neighbours but also shareholders, with the same fundamental interest at stake – preserving the community as a nice place for everyone to live.

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Erin Berney - Condominium Lawyer 
Field Law