I’d like to discuss Gerry Hyman’s latest article. The first question is as follows:
QUESTION: I am renting my townhouse condominium to a person with a visual disability. I put up an orange mailbox so that the tenant would be able to more easily distinguish his condo from neighbouring condos. I have been advised that the mailbox, under the rules, is to be brown, white or black and must be changed. Must I comply?
ANSWER: Once again, there must be accommodation for the tenant’s disability. If the mailbox was installed on the common elements, including exclusive use common elements, the corporation should have been requested to carry out the installation pursuant to its obligation under the Human Rights Code.
You were entitled to alter or add to the common elements only with the written approval of the corporation and the registration of an agreement between you and the corporation in accordance with section 98 of the Condominium Act. Even if the corporation could not refuse its approval, there would be legal and registration costs for the preparation and registration of the agreement.
The agreement would be unnecessary if the mailbox were installed by the corporation.
It makes no sense for the corporation to require you to remove the mailbox if the corporation can then be required to re-install it. The corporation may be amenable to treating the installation as carried out on its behalf given its obligation under the Human Rights Code.
The Human Rights Act does supersede the Condominium Act. So, the owner should inform the Board of the situation, and why the mailbox is a different colour. The owner does not need to mention the Human Rights Act, but simply that the tenant has poor eyesight and that the change in colour was made to assist the tenant find the unit. The owner should also inform the Board that the mailbox will be changed, and if necessary at the owner’s expense, when the tenant moves out (as I assume that it was changed to begin with at the owner’s expense.) That should drop it. If this does not, the owner and resident should contact the Human Rights Commission and file a complaint against the Board.
If the mailbox was installed by the condominium, the Board would be wise not to make an issue of the situation as long as the owner is willing to put the mailbox back to the original condition once the tenant moves out.
Yes, the owner – if the mailbox is owned by the condominium – should have asked for written permission, but as this is a temporary issue (it can be changed when the tenant moves out), I honestly do not believe that the Board should make a deal out of this. However, this is an area where the condominium would have had to pick up the expense to paint the mailbox, but has not had to do so. The Board should provide a one time exemption to the requirements in the Act as long as the owner accepts the responsibility to change the mailbox’s colour back when the tenant moves out.
If the mailbox belongs to the owner, then the Board has no right to interfere once they are made aware of the situation.
QUESTION: Is it true that condominium documents cannot prevent the renting of a unit by the unit owner?
ANSWER: Yes. A court in 1974 held that the right to sell or lease one’s property is “a fundamental incident of ownership” and cannot be prohibited even by a declaration provision. More recently a court held that a rule requiring a unit lease to be for a term not less than six months was valid. The court endorsed the purpose of the rule which was to prevent the leasing of units for short terms producing transient use similar to a hotel operation.
This is a difficult situation in a way. An owner of a unit has the right the rent out his or her unit. However, the Board has to ensure the safety of all the residents of the condominium, which can be an issue if they have to contend with a large number of transient residents thanks to units continuing to have a large number of renters in them. Although I prefer to see leases of one year. This ensures less turnover of tenants and is better for the owner renting out their unit anyway (better guarantee of future income.)
QUESTION: What can be done if four of six members of the board of directors resign at once before the expiration of their terms?
ANSWER: The two remaining directors, within 30 days of the loss of a quorum, must call and hold a meeting of owners to fill all of the board vacancies.
The first question has to be why did four out of six directors resign in the first place? This suggests that there is something deeper going on here. If the directors refuse to call the meeting, the owners can requisition the meeting. Although before the owners elect four new directors, they should ask the remaining directors what was occurring beforehand to cause the resignation, including asking the resigned directors if why if necessary. I have the idea that there is something more to this if two-thirds of the Board has suddenly resigned.
QUESTION: What is the proper procedure for removing the board of directors? We have signatures of owners of 50 per cent of the units, plus one.
ANSWER: A requisition for an owners’ meeting to remove directors requires signatures by owners of just 15 per cent of the units. The requisition must identify and provide a reason for removal of each director and must identify a director who was elected by owners of owner-occupied units. The requisition must be delivered to the condominium president or secretary or deposited at the address for service for the corporation.
The removal of a director requires an affirmative vote of owners of more than 50 per cent of the units at the requisitioned meeting. There must be a separate vote for removal of each director named in the requisition.
The requisition does only need to be signed by owners representing at least 15% of the units, so this has been met. As the current Act requires a majority vote of the entire condominium – as in, more than half of all the owners – it sounds like there is already enough support for this. As such, once the Board receives the requisition, the directors in question may be wise to simply resign and not fight this requisition.
Of course, this is still an issue of mine with the Act. The Act should only require a two-thirds majority of votes cast (i.e. two out of three votes) to remove, which means that owners who do not vote do not have an impact on the final outcome of the vote, yet a number of owners still have to vote to approve removal. We need to bring more democracy to condominiums, and this question brings up one of the problems (the large requirement to remove a director.)
Edward Brain's Blog 