According to the Condominium Act, 1998 (the “Act”), a person is not qualified to be a condominium director (in Ontario) if:
- the person is under 18 years of age;
- the person has an undischarged bankruptcy;
- the person is incapable of managing property within the meaning of the Substitute Decisions Act, 1992; or
- the person has a condominium lien against his or her unit, and the lien is not discharged for 90 days.
However, condominium corporations can also establish other qualifications for their directors by by-law, provided the qualifications are reasonable and in keeping with the Act and the corporation’s Declaration. Possible qualifications could include the following:
- Every director will be either an owner, the spouse of an owner, or the nominee of a limited company which is an owner or co-owner;
- If a unit has more than one owner, only one of those owners may be a member of the Board at any time.
- If two persons are co-habiting, only one of them may be a member of the Board at any time.
- A person immediately ceases to be a director if the person fails to attend three consecutive Board Meetings without providing an excuse which is reasonably satisfactory to the Board.
- A person immediately ceases to be a director if the person is an owner and any contributions payable in respect of the owner’s unit have been in arrears for 30 days.
- A person who is elected or appointed to the Board will, within three weeks of the election or appointment, provide to the other directors a Criminal Records Check, which is reasonably satisfactory to the Board (as confirmed by resolution of the Board excluding the newly elected or appointed director). If the person fails to provide a Criminal Records Check within the aforesaid three-week period or if the aforesaid Board resolution fails to pass, the person immediately ceases to be a director. In all cases, the corporation will reimburse the person for the cost of obtaining the Criminal Records Check.
These are just some examples. Other qualifications are possible – again, provided they are reasonable.
We are seeing more and more cases in which the Court is prepared to order the sale of a unit due to the owner’s misconduct. As a general statement, the Courts will consider this exceptional enforcement remedy (forced sale of a unit) in cases where the owner has demonstrated very serious misconduct (of the sort that is extremely disturbing or threatening to other residents) and an unwillingness to correct this misconduct after numerous warnings or legal proceedings. Here’s my summary of one such recent Court decision, from Condo Cases Across Canada (which I author for quarterly publication by the National Chapter of the Canadian Condominium Institute).
Peel Condominium Corporation No. 304 v. Hirsi (Ontario Superior Court) January 15, 2014
Court orders sale of unit
Due to outrageous conduct, the owner was ordered to sell her unit. The Court said:
I am satisfied that given the outrageous and persistent conduct of the respondent, which includes incidents of stabbing and shooting and other intolerable conduct, that per paragraph 87 of Justice Code’s decision in Metro Toronto Condominium Corporation No. 747 and Natalia Korolekh (see Condo Cases Across Canada, Part 32, November 2010) that a perfect storm exists where the misconduct is serious and persistent, with exceptional impact on a building occupied by law abiding senior citizens and that the respondent, on the evidence is incorrigible and unmanageable.
If you are having difficulty obtaining the necessary attendance to pass a by-law, using proxy votes may be the answer.
Passing a condominium by-law requires an affirmative vote by the owners of a majority of all units. In other words, the owners of a majority of all units must vote in favour of passing the by-law.
Sometimes, at a meeting of owners, there are not enough units represented in person or by proxy to even hold the by-law vote.
In such situations, the owners at the meeting (assuming there is a quorum) can vote to adjourn the meeting to a new date which is either set at the meeting or is to be determined by the Board. The vote should be to adjourn the meeting, or to adjourn the particular business (consideration of the by-law), without simply terminating or closing the meeting. It is also important that the proxies that are used for the meeting state that they can be used both for the original meeting and any adjournment of the meeting.
Between the date of the original meeting and the resumption of the same meeting, proxies can be solicited from owners. Owners who were not in attendance (either in person or by proxy), at the original meeting, can sign proxies. Owners who were in attendance (either in person or by proxy), at the original meeting, can also sign proxies or can revoke and/or replace their original proxies.
If the Board is to determine the date of the re-called meeting, the Board will normally re-call the meeting (with the usual 15 days’ notice) after sufficient proxies have been received to hold a vote on the by-law.
At the re-called meeting, and assuming that sufficient units are then represented in person or by proxy, a vote can be taken on the bylaw.
Section 57 of the Condominium Act, 1998 (the “Act”) allows a condominium corporation to enact a by-law establishing occupancy limits for residential units.
The limits that can be imposed by the condominium board cannot be more restrictive than those already imposed by the local municipal by-laws or by the building and engineering standards in the Ontario Building Code (the “Code”). Most condominiums do not consider imposing the occupancy standards defined in the municipal by-laws. This is because most municipal by-laws allow for a considerably higher density of occupants than the Code. The limit in the Code is generally two persons per sleeping room. Unless the building is designed and approved for a higher density of occupants, this is the standard that applies under the Code. Therefore, this is the standard that is usually adopted in an Occupancy Standards By-law passed by a condominium corporation.
Before passing an Occupancy Standards By-law that adopts the limit of two persons per sleeping room, it is advisable to have an architect or engineer confirm whether or not the building was in fact designed for a higher density of occupants.
The benefit of establishing an Occupancy Standards By-law is that this gives the condominium corporation the authority to take direct enforcement steps against contravening residents, without having to rely upon the municipality or other enforcement authority.
In addition, Section 57 (4) of the Act permits the condominium corporation to levy certain additional assessments upon the unit where the standards (in the by-law) have been contravened. These additional charges form part of the common expenses of the unit and can, therefore, be enforced by condominium lien.
We had another terrific Condo Conundrums Event on February 4, 2014! Again, we had several full tables of condominium directors, managers and insurance adjusters, with one of our lawyers leading the discussion at each table. The “table topics” were:
- Reserve Fund Studies
- Common Element Modifications
- Condo Collections
- Litigation Strategy
- Difficult Meetings
We again received some wonderful feedback and suggestions for our next session.
Thanks so much to all who participated!
Stay tuned for our next Condo Conundrums event in the coming months…