Gerry Hyman has a new article for the Toronto Star. I would like to discuss some of the questions he responded to. Firstly, this one:
Q: Our board has been funding a social committee to the tune of $200 a month to finance assorted functions that are attended by fewer than five per cent of approximately 400 residents. Is it legitimate that all owners are required to contribute through their common expenses to events that the vast majority have no interest in attending?
A: The Condominium Act defines common expenses as “the expenses related to the performance of the objects and duties of a corporation and all expenses specified as common expenses in this Act or in a declaration.” The objects of a corporation are “to manage the property and assets, if any, of the corporation on behalf of the owners.” The duties of a corporation are “to control, manage and administer the common elements and assets of the corporation.” I am of the opinion that the social committee expenditures benefitting very few of the residents are not related to the performance of the objects or duties of the corporation.
The board, if it wishes to obligate all of the owners to provide such funding, should amend the declaration to specify that the expenditures are common expenses. The declaration amendment will require written approval of owners of 80 per cent of the units.
The person raising the question has not specified whether or not the Board has allowed the Social Committee to raise funds on their own through a donation box, 50/50 draws, etc. The Board should allow the Committee to do this in any case as it may help to either reduce, or eliminate the need for monthly amounts plus as long as it voluntary it allows those attending to decide whether or not they wish to give any money or not.
If there is a special event that they are doing, such as a community picnic, then there is nothing wrong with providing the Committee a small amount of money to help cover the costs. At the end of the day, as long as the events are open to all owners, it does not matter, nor should it matter, if only a small number of owners attend the functions. Owners are free to attend events or not. Social events help to create a since of community within the condominium. And that is what matters and it sounds like the Board, through the Social Committee, is trying to do.
Another question raised was as follows:
Q: Our board failed to specify the reason for a special assessment, as required by our bylaws. A request for the reason was unsuccessful and I contacted the Ministry of Consumer Services. A ministry representative advised they do not enforce condominium compliance with the act. This is strange as the ministry is intended to provide consumer protection. Am I correct that this leaves the Condominium Act as lame duck legislation?
A: The Ministry of Consumer Services has no authority to enforce the Condominium Act. The act is “self enforcement” legislation and provides the means for enforcement by unit owners and corporations. A disagreement between an owner and a corporation relating to the declaration, bylaws or rules is to be mediated and, if necessary, arbitrated. The Ontario government is presently considering amendments to the Condominium Act and it is possible that a more efficient method of resolving some disputes between owners and corporations will be introduced, perhaps by means of a tribunal or an ombudsman.
The problem here is that the Condominium Act has absolutely no teeth. The Act needs to be amended to provide for a Tribunal or Ombudsman with the teeth to enforce the Condominium Act, and the Bylaws and Rules of the Condominium. Tenants have a Tribunal, so tenants have more rights than a condominium owner.
It is great to say ‘Go to mediation, arbitration, and/or the court’ but unless the issue is related to a Human Rights infringement, the owner has to pay for his/her own expenses to do so which can be quite expensive to do. This is especially true when something can be handled quite easily, such as is the case in the situation described in the question.
There is an easy way to help pay for the cost of a Tribunal or Ombudsman – a charge to each condominium of $5 per unit per month. This is not a large amount to pay and can go along way to help assist owners enforce their rights. Also, in many cases, such as the one mentioned in the question, affect all the owners, not just one. So, the one owner who files a complaint would benefit everyone after the a Tribunal or Ombudsman orders the Board to provide details of the Special Assessment.
There is no reason that the Board in this question should not be providing owners with the rationale for the Special Assessment. The Condominium Act could be amended to specify that the Board must hold a Special Meeting of owners to explain the rationale for the Special Assessment, and to answer any questions the owners may have. While the owners do not necessarily have to approve the assessment, they should have the right to demand a response from the Board as to why the Special Assessment is even occurring.