In some instances where a condominium has a shared facility (shared with another party), the condominium developer enters into a Shared Facilities Agreement before the condominium corporation is declared. The Agreement then appears on title to each unit at the condominium with the intention that the Condominium Corporation would assume the contractual obligations even though it was never a signatory to the Agreement.
It is never a pleasant situation when an owner disregards the Condominium Act, 1998 (the “Act”), and the Corporation’s Declaration, By-laws and Rules. It is much more concerning when that behaviour begins to escalate causing concern for the safety and security of Board members, their families and the Corporation’s contractors.
The by-laws of most condominium corporations state who should chair meetings of owners. Most by-laws call for the corporation’s President, if available, or alternatively the corporation’s Vice-President, to chair owners’ meetings.
Occasionally, the persons listed in the corporation’s by-laws as potential chairs for a meeting of owners may be unable or unwilling to act as chair. [For example, it may make sense to choose another chair for a meeting which has been called to consider removal of the President or Vice-President from the Board.] In these situations, the owners at the meeting can appoint someone else to chair the meeting.
This process starts by someone proposing a person as chair (in the form of a motion). There must then be a seconder in support of the motion. A discussion may follow, before the vote is taken. The motion is decided based upon a majority of the votes cast. If a majority does not vote in favour of the motion, another person can then be proposed and the process continues until a chair is selected.
Condominium owners and condominium corporations alike have obligations to fulfill in their unique relationship. The Condominium Act, as well as the Declaration, By-Laws, and Rules of a condominium itself, set out these obligations in detail. But what happens when one side does not hold up their end of the bargain?
In Carleton Condominium Corp. No. 25 v Patrick Eagan (2015 ONSC 4353), the Ontario Superior Court exercised its authority to order a neglectful owner to comply with his responsibilities. In that case, Patrick Eagan denied access to Envirocontrol to inspect his unit for bed bugs. Over the course of the next year and a half, he continued to ignore directions to allow his unit to be treated, directly cancelled scheduled treatments himself, and continually refused to prepare his unit for treatments; and all this while the owners directly across from him were forced to treat their condo due to his continued neglect.
Not surprisingly, the Court had little difficulty finding that Mr. Eagan had breached his duties under the Condominium Act. But what is perhaps more helpful for condominium corporations to know moving forward is that in spite of obvious neglect, and even disdain, for an owner’s obligations, courts will not simply grant the condominium corporation whatever it wants, no matter how wronged they were.
Here are some important things to remember if your corporation ever finds itself in a similar predicament.
1) Keep in mind that both parties have duties in this relationship. Although Mr. Eagan breached his own obligations, it is important to note that in this case the Carleton Condominium Corporation appropriately took all reasonable steps, such as providing information to the owner, scheduling a treatment appointment, and conducting its own inspections, to ensure that the owner of the unit was in compliance with the Condominium Act. Though the court found that he was not, the fact that the corporation itself had lived up to its end of the bargain made it easier to find fault in the other party.
2) Courts can only order someone to fix an existing problem, not future problems. Although the condominium corporation in this case was granted an order for Mr. Eagan to immediately prepare his unit for bed bug treatment, the judge refused to grant an order forcing Mr. Eagan to maintain his unit “in a condition that does not pose health, safety, and/or fire risk.” Of course, Mr. Eagan is required to do this anyway, as these are some of his general obligations; but just because he breached them does not mean a judge will order somebody to refrain from breaching them again. Courts expect people to follow the law, even if they’re contravened it before.
3) Relationships like these can be complicated – as always, if you are confronted with a problematic condo owner, be sure to consult with an experienced condominium lawyer to help you get the best results possible!