Gerry Hyman has another article for the Toronto Star. I want to discuss two of the questions raised:
QUESTION: I pay my common-expense contributions monthly by cheque. Management has advised that we’ll be required to pay a $10 fee for cheque payments rather than automatic account debit. Can the board do this?
ANSWER: The condominium corporation’s documentation would have to be amended to require the bank account debit or, alternatively, the additional $10 payment. This could be done by the passage of a bylaw, or an amendment to an existing bylaw, as the Condominium Act permits bylaws to “govern the assessment and collection of contributions to the common expenses.”
The bylaw or amendment requires the approval by an affirmative vote of the owners of a majority of the units. Bylaws must be reasonable but a court will not uphold a challenge to a bylaw unless the court determines that it is clearly unreasonable. And such a bylaw would likely be upheld by a court.
A condo corp. rule would not suffice as rules must be “respecting the use of common elements and units.”
The obvious question is what is the condominium’s problem? There is absolutely no reason why the owner should not be able to pay by cheque. To require an extra charge, when there is no extra cost to deposit a cheque instead of using pre-paid withdrawals, is clearly unreasonable. I do not understand how Mr. Hyman does not see this. If there was a cost to the condominium associated with paying by cheques but not by pre-paid withdrawal, then it would be reasonable to back charge the cost to the owner. However, this is not likely.
This charge is not fair, and if the owners are asked to approve a By-law then the owners should flatly reject the By-law.
QUESTION: The tenant in the unit below mine is a smoker. I cannot open a window due to his second-hand smoke. My complaints to management, as well as to the owner of the unit below, have been ineffective. What can I do?
ANSWER: I have dealt with this before but it is a common problem and my comments bear repeating. Subsection 117 of the Condominium Act, as recently amended, prohibits any activity in a unit or on the common elements that is likely to cause injury or an illness to an individual.
The likelihood of serious illness from breathing second-hand smoke has been clearly established. You should point out to the board of directors the corporation’s obligation to enforce the prohibition in the Condominium Act.
Should the board refuse to act, you might discuss with a condominium litigation lawyer the commencement of a court action pursuant to Section 134 of the Condominium Act requesting an order requiring the corporation to enforce the statutory prohibition and an order requiring the corporation to reimburse you for your legal expense in regard to the court application.
This is a prime example of what’s wrong with the Condominium Act. The newly formed Condominium Tribunal should be empowered to deal with these issues, and as it is a Health and Safety issue, should not cost the owner any money – or at least be a nominal amount, like $20. The owner should not have to pay for a lawyer in order not be affected by second hand smoke. It is simply unacceptable and should not be occurring under any situation.