Getting Ready for Spring: Part 1 – Barbeques

Does your condominium corporation permit barbeques on the common elements and/or balconies? If not, does your condominium have an adequate provision in its declaration or rules restricting this activity?

Many condominium corporations pass a rule to prohibit all barbeques on balconies. In our view, such a rule is valid and enforceable in most cases. Sometimes, a condominium corporation will only limit the types of barbeques permitted. Whenever barbeques are permitted, a condominium should have a rule in place regulating the use of any barbeques (and in particular, on balconies).

A well drafted rule will address issues such as: types of barbeques permitted (electric, propane, charcoal), and steps that an owner must follow for addressing fire prevention, safety, inspection of equipment, nuisance issues, and various other matters.

While all barbeques are a potential fire hazard (which is one of the reasons that rules governing use are recommended), it is important to be aware that there are specific restrictions on the use of propane barbeques. The TSSA (Technical Standards and Safety Authority) regulates the use of propane barbeques. The specific regulations, as well as other important safety tips regarding the use of fuel burning barbeques, can be found on websites for the TSSA and the City of Ottawa. Below are some of the key points to remember:

  • Electric barbeques are often preferred for condominium balconies;
  • Be aware of the risks of carbon monoxide for fuel burning barbeques. These barbeques are not permitted in an enclosed space (such as an enclosed balcony, or, for townhouse condominiums, in an attached garage);
  • Propane cylinders must be stored outdoors. The release valve must be at least one metre horizontally from any building opening below it (doors and windows) and three metres from a building air intake;
  • Propane cylinders must be transported in service elevators. If there are no service elevators, only the person transporting the cylinder is allowed in the passenger elevator;
  • Barbeques must be kept clear of all combustible materials;
  • Never leave a barbeque unattended when in use.

The consequences of improper barbeque use can be profound due to carbon monoxide and fire risks. On a condominium balcony, improper use of a barbeque, leading to a fire, can result in damage to the common elements and units, and is a threat to the life safety of residents. Ensure that your Condominium Corporation has rules in place regarding barbeques and that residents follow them!

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Yet Another Case of a Limited Recovery of Enforcement Costs

In a Toronto condominium this past September, complaints were received about the smell of tobacco smoke permeating into units surrounding Unit 115. This unit was occupied by two new tenants pursuant to a lease that prohibited smoking. The smells and complaints occurred shortly after the tenants moved in.

The evidence before the court in Toronto Standard Condominium Corporation No. 2032 v Boudair, et al. was that the Condominium Corporation notified the unit owner of the complaints received approximately three weeks into the lease, and the unit owner then advised the tenants and instructed them not to smoke in the unit. However, further complaints were received by the Condominium Corporation, and the owner continued to communicate with the tenants about their ongoing breach of the smoking prohibitions.

The Condominium Corporation then sent a demand letter to the unit owner on November 4, 2015, requesting compliance with the rules and regulations. The unit owner forwarded the Corporation’s letter to the tenants with a note that if the tenants did not act properly and stop smoking, or vacant the unit, they would be responsible for all expenses incurred.

Despite this, further complaints were received by the Condominium Corporation, and an application was commenced on November 27, 2015. Once the application record was served on the owner, he also served a notice to terminate the lease, and secured the earliest available date (February 2016) with the Landlord and Tenant Board to terminate the tenancy.

The parties agreed before the Court in January 2016 to a compliance order under s. 134 of the Condominium Act, 1998, enforcing compliance with the rules, an order prohibiting the tenants from smoking in the unit, and an order terminating the lease pursuant to s. 134(4) of the Act. They then returned to Court to argue the issue of costs.

The Condominium Corporation was seeking costs against the owner and the occupants on a substantial indemnity basis of $32,976.94, or on a partial indemnity basis of $25,125.00.

The Court exercised its discretion and made a partial indemnity costs award of $10,000 in favour of the Condominium, payable only by the tenants, not the unit owner. The Court also awarded costs against the tenants to the unit owner.

In making the decision that the owner did not have to pay any costs, the Court determined that the unit owner did take all reasonable steps in that he “did not sit by and do nothing”. He made considerable efforts to obtain compliance, he threatened the tenants with termination, he was very active once he learned of the existence of the complaints, and pursuing an early termination of the lease was a prudent course of action.

In exercising its discretion and awarding only $10,000 in costs to the Condominium Corporation, the Court stated:

I do not believe that all of the costs sought by the applicant and Dong should lay at the feet of the tenants. I have already found that the applicant jumped the “smoking gun” by moving straight for a compliance order under section 131 of the Act without working with and assisting Dong with his efforts. Prior to the issuance of this application, the tenants were already in negotiations with Dong to move out of the unit and were moving towards that goal.”

“… Overall, the Court is required to consider what is “fair and reasonable” in fixing costs, and it is to do so with a view to balance and compensation of the successful party with the goal of fostering access to justice

This case is another example of the Court’s exercise of its discretion in awarding costs, shifting further away from the Condominium Corporation’s statutory and contractual indemnification protections in compliance proceedings.

While the initial position may be full indemnity in accordance with these protections, these decisions rely on case-specific facts that, in the Court’s view, justify a reduction of the scale and quantum of awards. The reasons cited often point a finger at the Condominium Corporation for having not done enough to find a resolution, or because a Board made what was likely one or more innocuous choices at the time, which, despite obtaining the compliance order, then backfire on the issue of costs.

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A Condominium’s ‘Natural’ Reserve Fund Contribution

Condominium Boards are often faced with difficult decisions about whether or not to make a lump sum contribution to the reserve fund. When asked to consider these questions, I often think about the condominium’s “natural” reserve fund contribution.

Here’s what I mean by that: to me, the “natural” contribution is the condominium’s normal annual contribution, assuming a normal reserve fund balance. It’s like the “perfect annual contribution” for the condominium, based on normal life expectancies and replacement costs for the various reserve fund components, once any deficiencies have been addressed.

If a condominium’s annual reserve fund contribution is at or near the “natural” level, then the reserve fund contributions should closely reflect the true long-term repair and replacement costs for the condominium. The result should also be that the condominium fees are at a normal or natural level for the particular condominium, which arguably makes the most sense for marketability of the units. Furthermore, with annual contributions at the “natural” level, the reserve fund balance shouldn’t grow to an excessively high level at any time down the road.

On the other hand, if a condominium’s annual reserve fund contribution is “higher than natural”, this will mean “higher than natural condominium fees”, and the condominium will tend to build up an excessive reserve fund balance as the years go by.

In some cases, a special assessment (or a loan, subject to by-law approval) may be a good way to keep the annual reserve fund contributions closer to the natural level. In other words, in some cases it may make sense to “boost up” the reserve fund balance, so that ongoing annual contributions can be at the natural level. This is something for consideration of the Board in a given case.

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A Board’s Mandate to Make Changes to the Common Elements

A recent Ontario Superior Court decision Mazzilli v. Middlesex offers further insight into Section 97 of the Condominium Act – namely, when it is (and is not) necessary to involve owners in decisions about work on the common elements.

In the Mazzilli case, the Board had approved the following work, without involvement of the owners:

  • Changed the existing wood balcony guards with vinyl siding to a tempered glass/ballast system
  • Changed existing windows, which were a combination of sliders, casement and fixed windows, to vinyl awning windows
  • Changed the existing asphalt shingles to pre-finished steel roofing
  • Changed the existing brick and vinyl cladding to a combination of brick, stone and stucco; including the installation of a product known as Kerlite
  • Changed the existing electric forced heating units in the hallways to gas-fired units
  • Renovations to the interior lobby areas.

Overall, this was a $5 million renovation. One of the owners contested the changes to the common elements, arguing that the work required approval of the owners.

The Court, however, held that all of the work fell within the Board’s repair and maintenance mandate, and did not require involvement of the owners pursuant to Section 97 of the Condominium Act.

The Court decided that the condominium corporation was only keeping up with technology, consistent with advice from the corporation’s engineer. As such, this was all repair and maintenance, even if the result had a “different, more contemporary, aesthetic appearance”.

This decision tells us that changes of appearance do not necessarily require involvement of the owners, as long as the purpose is to replace or repair “old, defective or worn out” common elements, and particularly if the work is recommended by the corporation’s expert. However, I think each case needs to be considered on its own particular circumstances – including any expert advice. In some cases, I think changes of appearance may require owner involvement. But again, it will depend upon all of the circumstances.

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The Hammer or the Fly Swatter? – Condo Corporations and Litigation

As many condominium corporations are no doubt aware, using the court or an arbitration to resolve a dispute is sometimes unavoidable. It can often be the only effective manner in which to deal with a difficult owner who is either unwilling or unable to comply with the Act and/or a condominium’s governing documents. The Condominium Act in Section 17 (3) clearly states that condominium corporations have a duty to take all reasonable steps to enforce the Act, declaration, by-laws and rules; and this duty is owed to all residents of the community. It’s an important provision, directed at protecting and preserving the comfort of all condominium occupants in Ontario.

Because of these obligations, Section 134 of the Act (and often the declaration) includes a mechanism that effectively ensures the condominium corporation is fully indemnified in such situations. That is, it enables the corporation to recover all of the costs reasonably incurred in attaining compliance.

Balancing the interests of the innocent, compliant owners with those of the individual who is unwilling or unable to comply can be a challenging task. The compliant owners are entitled to enforcement; but the enforcement steps must also be reasonable. And the situation can be even more complicated when a non-compliant resident suffers from a disability (rendering him or her incapable of compliance), because condominium corporations have a duty to accommodate such disabilities. In my view, this doesn’t mean that non-compliance in such cases must be tolerated, so that enforcement becomes impossible.

I think the basic principle is as follows: Condominium corporations must consider all of the unique circumstances of each situation, and then determine a reasonable course of action to achieve compliance.

Courts are increasingly making decisions that appear to indicate that, in some cases, condominiums may be taking a hard-line approach that goes beyond what is reasonable in the circumstances.

In the December 2015 case Couture v. TSCC No. 2187, Justice Myers made the following statement as a footnote in his decision:

“Perhaps the board had an eye toward subsection 134 (5) of the statute that entitles a condominium corporation to full indemnity costs in litigation against a unit owner in which the condominium corporation obtains any award of damages or costs. This subsection performs an important role to protect innocent unit owners from paying the price of unmeritorious litigation. However, it also provides a skewed incentive to boards of directors and their advisors who can wield a heavy sword over the heads of unit owners… This section unfortunately incentivizes recalcitrant, litigious behaviour by condominium boards of directors and their advisors whom may be so inclined.

Clearly not every condominium’s behaviour would be characterized as “recalcitrant” or “litigious”. However, this footnote offers important insight into the perspective of the courts on applications for compliance, a perspective we’ve noticed is also reflected, to some extent, in other recent cases. Courts appear to be sending a signal to condominiums that while they are legally entitled to full indemnity costs in cases of non-compliance, they nonetheless have a duty to ensure that those costs are incurred carefully and reasonably. In other words, it’s best to avoid using a hammer, when a fly swatter will do.

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