Damage Caused by Common Elements

Gerry Hyman has written a new article.  Let’s discuss what he had to say:

QUESTION:  It has always been the practise in our townhouse condominium that dogs be taken to the adjoining hydro corridor to do their business. A recently elected director, followed by his next-door neighbour, has begun allowing his two dogs to relieve themselves on the common-element front lawns, causing considerable damage. The rules state only that owners must clean up after their dogs. I believe that the majority of the owners agree that that the rule should specify that dogs must be taken off the common elements. Can anything be done?

ANSWER:  The Condominium Act provides: “The owners may amend or repeal a rule at a meeting of owners duly called for that purpose.” Owners of at least 15 per cent of the units are entitled to requisition an owners’ meeting to vote on an amendment to the dog rule. The wording of the amendment should be specified in the requisition.

A rule in this situation would work.  However, at the same time owners could simply requisition a meeting in order to question this director, and the rest of the Board, about the situation.  If there may no rule to the effect, if there is damage to the common elements the Board is required to take corrective action regardless of the fact that the offender is a Board member.

However, if this does not work, the owners need to pass a rule stating that dogs must be taken off site to do their business.

QUESTION:  Our townhouse complex has a history of leakage and floods into units, due to foundation problems. The board carries out foundation repairs but denies any responsibility for damage to unit interiors. Isn’t the corporation responsible?

ANSWER:  The fact that the cause of the damage to the unit interiors originated in the common elements does not render the condominium corporation responsible for unit repairs which according to the declaration are the responsibility of each owner. The corporation may be responsible for the cost of interior repairs if the damage resulted from the corporation’s failure to make timely or sufficient repairs of the common element defects of which the board was aware or of which it should have been aware.

This issue is an obvious example of where the Board knows there is an issue and are refusing to take corrective action to fix it.  If the Board refuses to fix the foundation problems, then the Board needs to be replaced with a Board that will take appropriate action.

However, Mr. Hyman’s response demonstrates an issue that needs to be fixed with the Condominium Act.  The problem of fixing up a unit needs to require that a condominium will fix a damaged unit back up to the condition it was in prior to the damage.  It is not acceptable to simply fix the unit to ‘original condition’ as the unit then is not what it was prior to the damage.  Also regardless of whether the damage was intentional (i.e. the condominium knew of the problem but refuses to do anything as is the case here) or unintentional (i.e. the condominium did not know of an issue that would cause the damage) the issue here is who is responsible for the damage.  If the damage is caused by something that the condominium is responsible for maintaining, then the condominium should be responsible to repair the unit to the condition it was in prior to the damage.

QUESTION:  We have a unit owner who will only communicate issues or concerns to a board member. Is he entitled to ignore our procedure requiring all communication to go to the board through the property manager?

ANSWER:  It is reasonable to require that owners’ issues or concerns be in writing delivered to the property manager. The board might pass a rule requiring compliance with that procedure unless the board, in exceptional circumstances, determines to accept a communication directly from an owner. Those circumstances could include an owners’ belief that the manager is not bringing material communications to the attention of the board or an owner’s complaint relating to the conduct of the manager.

The Board, not the manager, is ultimately responsible for making decisions about the operation of the condominium.  As such, the Board should be receiving letters from all owners regardless.  While most correspondence should go through the office, unless as Mr. Hyman states it deals with the manager and/or a lack of response from the manager, it should be remembered that any powers the manager has are only because they are delegated to him/her by the Board and are extremely limited.  This means that in many situations the Board will need to see the letter and instruct the manager as to what it wants done.  So the Board should not be so harsh on owners who want to contact them without going through the manager.

But this also raises the question of whether or not the manager is doing a good job.  If owners do not want to deal with the manager it suggests that there is something wrong with the manager and perhaps the Board needs to do some more digging and find out why owners do not want to deal with the manager and perhaps replace the manager.

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