New Condo Lawyer – Kristen Bailey

We are delighted to advise that a new lawyer – Kristen Bailey – has joined Nelligan O’Brien Payne’s Condominium Law Group.

Kristen graduated from Queen’s Law School in 2004, and was called to the Ontario Bar in 2005. Kristen has several years of experience practicing condominium law in Toronto, at the law firm of Fine & Deo.

We are thrilled that Kristen has moved to Ottawa!

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Common Element Alterations by Owners

If an owner wishes to make an alteration to the common elements – say, a landing pad on the roof, for Santa’s sleigh – there are various requirements that apply. Those requirements are as follows:

  1. Under Section 98 of the Condominium Act (“the Act”), the alteration requires consent of the Board and an agreement between the owner and the condominium corporation, registered on title to the owner’s unit. The agreement must deal with certain matters set out in Section 98.
  2. Unless the alteration meets the criteria listed in Section 98(2) of the Act, it may be necessary to involve all owners in the approval process, pursuant to Section 97 of the Act.

[Note 1: If an owner is entitled to an alteration under the Ontario Human Rights Code, this requirement will not apply. However, depending upon the circumstances, an agreement (Item 1 above) might still be appropriate.

Note 2: Even if owner involvement isn’t required in a particular case, it may still be wise to notify owners of the permitted alteration(s).]

  1. The Declaration, By-laws and Rules may contain additional requirements.
  2. Any status certificate subsequently issued in relation to the unit must make reference to the alteration (in paragraph 23 of the certificate).

In our view, a “Section 98 By-law” may be an excellent way to satisfy Items 1 and 2 above, and can save the expense of having to register a separate agreement for each permitted alteration.

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Happy Holidays to our Wonderful Readers!

We are feeling nostalgic over the holidays this season, and we hope that this post finds you happily curled up in your condos with a warm blanket, a cup of hot cocoa, and a great book!

Once a writer, always a writer! Looking into our past, we have found a wonderful Christmas poem written by our blog editor, Jim Davidson, when he was only twelve years old. It suits our mood perfectly, and we hope that sharing it with you will warm your heart and bring back memories of your own holidays past, whatever your favourite traditions may be.

Our very best wishes for a safe and happy holiday season!

The Condo Law News team.

A Christmas Poem

Well I remember what Rudolph said to old St. Nick
He said “Santa old buddy, the fog’s kinda thick
I can’t see a foot for the snow and the sleet
And at this rate, Santa, it’ll take us all week”

Santa just smiled and he said “what’s your worry?”
He said “Rudolph, relax, there ain’t no hurry
The weather’ll change when we get off the coast
And until then, Rudolph, we’ll just make the most”

Onward they flew, their hearts aglow
Braving the cold, and dodging the snow
And as a shimmer appeared with the closing of night
They finished their task, and slipped from sight

Then came the warmth of the morning sun
The air was fresh, the job was done
And though all the people were far far away
They brought ‘em all together on Christmas day

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Condo Conundrums a Huge Success!

Our “Condo Conundrums” event on November 28, 2013 was a huge success! 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:

  • Insurance (including D&O)
  • Reserve Fund Studies
  • Human Rights
  • Problem Owners/Occupants
  • Litigation Strategy
  • Difficult Meetings

We all learned a lot, and we received some wonderful feedback and suggestions for our next session! 

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Communications With Board Can Go Through the Management Office

In a recent case, the Court confirmed that a condominium Board can properly ask that communications with the Board be sent only through the management office.

In many cases, this method of communication (between the Board and owners) makes good sense.

Here’s my summary of the case, from the most recent Condo Cases Across Canada (which I author for publication by the Canadian Condominium Institute National Chapter).

Diamantopoulos v. Metropolitan Toronto Condominium Corp. No. 594 (Ontario Superior Court), September 23, 2013

Owners’ claims dismissed as “de minimus” (ie. too trivial). Also reasonable for the corporation to ask that all board communications go through the management office.

The condominium corporation had directed the owners to:

  1. refrain from leaving sweaty towels on exercise machines and from adjusting television and audio equipment in the exercise room;
  2. refrain from making direct contact with the residents of unit 903;
  3. refrain from communicating with security personnel except in cases of real emergency; and
  4. refrain from communicating with members of the board, except through the management office.

The owners asserted that the condominium corporation had no proper basis for these directives. They said that they feared that the condominium corporation was “building a record to try to oust them from the condominium entirely”. The owners sought an order that their concerns be arbitrated.

The Court said:

  • I conclude that the matters in issue are so minor and incidental that there is nothing to litigate and nothing to mediate. The application is dismissed.”

The Court also said:

  • The (condominium corporation) has asked the (owners) to use the management office when communicating with the members of the board of directors…This seems sound policy for two reasons:
  1. it facilitates corporate record-keeping (it is more likely that these communications will be documented properly if they go through the office); and
  2. it protects board members from undue interference with the quiet enjoyment of their own units and the common areas.
  • If the condominium corporation does try to oust the owners from the condominium, “then it will be open to the (owners) to challenge that decision, including any underlying facts alleged to support it.
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