Gerry Hyman has a new article for the Toronto Star. Let’s look at some of the questions raised:
QUESTION: Our board has implemented a rule that bans smoking on the common elements and in the units. The ban will take effect shortly. Can the owners seek an owners’ vote to cancel the rule? If so, will tenants get to vote or only unit owners? And what percentage of the voting owners is required to cancel the rule?
ANSWER: When it passed the rule, the board was required to send it to the owners and to advise them that, within 30 days of receiving the notice of the rule, the owners could requisition an meeting to vote on the rule.
The requisition must be signed by owners of at least 15 per cent of the units who are entitled to vote. If the owners did not requisition the meeting within the 30-day period they could, nonetheless, now requisition a meeting to vote on the rule — the Condominium Act permits owners to amend or cancel a rule by an owners’ vote.
Only owners may vote. All that is required to cancel the rule is an affirmative vote by a majority of the voting owners.
Yes, only the owners can vote although the rule would affect tenants too. However, that does not stop tenants from collecting proxies. However, studies have shown that tobacco smoke can be dangerous to the health of non-smokers and thus the restriction is probably a good idea. On top of this, local laws may not allow people to smoke in the hallways, on elevators, or in other public area. Thus rule or no rule, smoking there will likely not be allowed. Owners should think long and hard before disagreeing with the Board on this issue.
Another question raised was:
QUESTION: I have not been able to find anything definitive on how owners can force an item onto an annual general meeting agenda. Am I correct that there is nothing compelling a board to put an item requested by the unit owners on the agenda? I understand that there can be no vote taken on matters not on the agenda.
ANSWER: You are correct that there is nothing in the Condominium Act that requires the corporation to include in the agenda a matter requested by the unit owners.
Owners may raise any matter for discussion during the other business section of the AGM. But as you point out there can be no vote in regard to any matter unless the vote is stipulated in the agenda.
Mr. Hyman is incorrect here. Since the recent changes to the Condominium Act came into force on November 1st 2017, any owner can request an item be placed on the Agenda for the Annual General Meeting (AGM.) The Board has the right not to adhere to this request though. However, if owners representing at least 15% of the units sign a requisition to place an issue, or issues, on the Agenda then the Board MUST place those issues on to the Agenda. While most issues will likely not fall under areas that the owners may hold a formal vote on, the Board still must put those requisitioned issues onto the Agenda and nothing stops an informal ‘straw vote’ from taking place.
Another question asked was:
QUESTION: Can a condo corporation limit the number of units that can be rented out?
ANSWER: No. A court has held that the right to rent an owner’s unit is an incident of ownership and cannot be removed by setting a limit on the permitted number of rentals.
While the Board cannot stop rentals it can set limits such as a minimum six month lease (or one year) and an owner leasing a unit must inform the Board that the unit is leased, who leased the unit, and provide a copy of the lease. Plus, tenants are required to follow the Condominium Act, Declaration, By-laws, and Rules of the condominium – and all those documents outrank the Landlord-Tenant Act, which means that a no-dog rule is enforceable against a tenant living in a Condominium.
Of course, the condominium can pass By-laws and Rules that would limit the rights of landlords in condominiums, especially requiring a one year lease. Also, anyone leasing a unit could end up being required to move out if they break the lease, which includes following the rules of the condominium – thus the Board could be very difficult on tenants who are in breach of the condominium’s By-laws and Rules in order to keep out tenants who may be causing problems.