Non-Owners and Residents have no Right to Parking Spots

Gerry Hyman has a new article.  Let’s discuss some of the question brought up:

QUESTION:  Twenty years ago we purchased a parking unit in a condominium corporation across the street from our home. We have now been advised that the declaration has been changed by a vote of owners to provide that parking units may only be rented or sold to a resident owner of the condominium building. That means that we will be unable to sell the parking unit to a purchaser of our home which does not have a garage. Can the board make a declaration change that will affect the sale price of our home?

ANSWER:  Conditions or restrictions with respect to gifts, leases and sales of units must be contained in the declaration. The declaration amendment could not be approved by a vote of the owners. Written consents were necessary from owners of at least 80 per cent of the units. The board was required to first call and hold an owners’ meeting for discussion of the amendment. Notice of the meeting had to include a copy of the proposed amendment. There would be no vote on the amendment at the meeting.

A declaration amendment providing that parking units may be sold only to resident owners is valid but only if enacted in accordance with the Condominium Act, including the required written consent of the owners.

Mr. Hyman has totally missed the question here.  The couple do not own a unit, nor or they residents.  They quite clearly stated that they live ‘across from the condominium’ and thus are not part of the condominium.  As such, why should they have a right to own a parking space in the condominium.  The change in the Declaration should have been part of the original Declaration, but the change is entirely for safety reasons – the condominium does not need non-owners/residents coming and going from the parking ground.

As for the resale price of this couple’s home, all I can say is that a) they bought the home without parking facilities so what is their problem now, and b) that they have had over two decades to build a driveway/garage, or find another location for parking.  However, they took advantage of a loophole in the condominium’s Declaration and now are suffering.

My advise to them is to contact the city about getting approval for at least a driveway on their property, or ask their neighbours what they do for parking.  Certainly there are options.

QUESTION:  Recently two directors resigned from the board. Without notifying owners those positions were open, the remaining three directors appointed two new directors. They did not appoint any of the three candidates who were defeated at the last annual general meeting. Can the board do this without inquiring as to whether there are owners interested in filling the vacancies, and without filling the vacancies with the defeated candidates?

ANSWER:  The majority of the remaining board members, provided there is a quorum, may appoint any person to fill a vacancy until the next AGM. A person appointed must meet the qualifications for directors set out in the Condominium Act or in the corporation’s bylaws. The board is not required to inquire whether owners or candidates defeated at the last election of directors, wish to fill the vacancies.

The Board has the right to appoint whoever they want to fill those two vacancies per Section 34 of the Condominium Act.  However, I agree with the person asking the question, if others have expressed a desire to serve on the Board, then they should have been asked first.  This is the ethical solution.  However, the authors of the Condominium Act never considered ethics when writing the Act.  They assumed that the Board would always act ethically, and did not consider that the Board may fill vacancies with people who would agree with the views of the other directors.

While the appointed director may only serve until the next annual meeting, when they have to be elected to fill the remaining term (or be elected to a new full term depending on when the position’s term comes up for election), being appointed to the Board before the AGM gives the person an advantage in being elected to the remaining term.  In my opinion, the Act should require that the Board immediately call an owners’ meeting to fill the vacancy for the remainder of the term unless the AGM is scheduled to take place within the next three months.

QUESTION:  Our board is no longer maintaining the building. Painting and wallpaper replacement are not being carried out and the general building appearance has deteriorated. Isn’t the board responsible for preserving the value of our units?

ANSWER:  The corporation is required to maintain the common elements unless the declaration specifies that certain common element components are to be maintained by unit owners. The directors are not entitled to refuse to carry out or to unreasonably delay necessary common element maintenance.

Again, thanks to proxies the Board can easily remain in their position for years.  And the Act requires the owners to spend their own money, and potentially a lot of money, to force the Board to do something.  The Act needs to be changed to limit proxies and to allow for an Ombudsman’s Office/Condo Office where owners can cheaply turn to for help.

Limiting the number of proxies that any one person can hold makes it easier for the owners who actually take the time to be involved in the operation of their condominium to take charge and elect new directors who will maintain the condominium.  Also a Condo Office, with the appropriate powers, could force the Board to maintain the property should owners complain about such negligence.

About Edward Brain

I am a long time condo activist and have a background in Business Administration.
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