Gerry Hyman has another article for the Toronto Star. Let’s discuss some of the questions raised:
QUESTION: At our annual general meeting, an owner nominated himself as a candidate for the board. There was only one vacancy and no other candidate. The chair declared the candidate elected by acclamation without a vote. Is this legal?
ANSWER: It is not unusual for the chair of the AGM to announce that an owner may nominate himself, especially when there are otherwise no candidates.
If the chair provides a reasonable opportunity for other owners to contest the election and no one steps forward, it is proper for the chair to advise that the one candidate is a director by acclamation.
I am surprised that there are no other candidates. Normally, a Board will try to find someone before the meeting to run for the open position (and usually someone who will likely agree with the majority.) As such, I am surprised that someone volunteering at the meeting would actually be elected. However, it is totally legal. Hey, if an owner did not like the idea, he or she could have stepped up ran as well, thereby requiring an election.
Another question raised was:
QUESTION: Does the board have the right to prohibit residents from complaining to management about the inappropriate conduct of their on-site manager?
ANSWER: Unless there is a rule requiring owners to bring such complaints to the board, and not to the management company, there is no right for the board to maintain such a prohibition.
I do not think it is necessary to have a rule in order for the Board to receive a complaint first. This should be common sense – and the only reason why an owner would refuse to go through the Board first is if the Board does not want to deal with the issue.
Another question raised is as follows:
QUESTION: Our board is pushing through an exterior painting project at a cost of more than $4 million over approximately four years. The board maintains that the cost will be paid out of the reserve fund and according to section 95(2) of the Condominium Act ,no owner consent is required for the corporation to make an expenditure out of the reserve fund. The board’s purpose, apparently, is to change the colour of the exterior. Is the board correct?
ANSWER: The board is correct that section 95(2) states that owner approval is not require for a reserve fund expenditure.
The question, however, is whether this is a proper reserve fund expenditure. The reserve fund may only be used for major repairs and replacements.
If the exterior walls have deteriorated and require replacement, the board may use the reserve fund without owner approval. Otherwise the project is not payable out of the reserve fund and constitutes an addition, alteration or improvement to the common elements.
If it is not a reserve fund expenditure, then if the estimated cost is greater than the larger part of $1,000 and one per cent of the corporation’s annual budget, the owners must be notified and advised of the project. They must be told of its estimated cost and also advised that at least 15 per cent of unit owners are entitled to require the board to call an owners’ meeting to vote on the project. The project may be approved at the meeting by a simple majority vote of those present in person and by proxy.
If the estimated cost exceeds 10 per cent of the budget, the board must call an owners’ meeting at which it obtains the approval of owners of at least 66-2/3 of all of the units.
Well, at four million dollars, I doubt that the only thing being done is a paint job. If the paint job is all that is required, then yes the owners should have an input. This is an area of the Condominium Act that requires amendment. The owners should always get input into any cosmetic work – we are talking about the appearance of their condominium after all.
In this case, I am guessing that there is other work that is required due to the costs, and I think the owners need to ask what exactly is going on. This is also why I believe that before doing any major repair work, there should be an owners’ meeting to discuss the project – so owners know exactly how their money is being spent.
And finally, there is this question:
QUESTION: Our board enforces a rule that prohibits dogs, even though we are aware of a dog residing in the building. Are we prohibited from buying a small dog?
ANSWER: The courts have decided that, while a rule may limit the number or size of dogs, a rule prohibiting dogs is unreasonable and thus unenforceable.
A dog prohibition is valid, however, if contained in the declaration.
Obviously, Mr. Hyman is missing the point here. It is quite obvious from the question that the Board has been able to enforce the no-dog rule, something other condominiums I know of have been able to do as well. As such, I would strongly discourage the questioner from purchasing a dog. The Board may successfully be able to enforce the rule.
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