Condominiums Required to Maintain Common Elements

Gerry Hyman has another article for the Toronto Star.  Let’s discuss two of the questions:

QUESTION:  We own a unit in a large, old condominium. We have had little or no heat, or hot water, for a long time and have had temperatures inside as low as 61F. Management says they are working on it. But there has been no improvement. The township by-law office says the minimum heat is 68F. The township could issue a non-compliance order but that would probably result in a fine that the unit owners would share and may not ensure that the situation is corrected. Neither would going to the press which would devalue our units. What can we do?

ANSWER: If the board continues to fail to carry out the necessary common element repairs to correct the heat and water problems, you and other owners with the same problems might engage a litigation lawyer. The lawyer would advise the corporation that you will commence a legal action requesting the court to issue a compliance order requiring the corporation to carry out its common elements maintenance and repair obligations.

Such a lawsuit would also request that the corporation be ordered to reimburse you for your legal costs in bringing the law suit.

This is where the Condominium has no teeth.  If the Board is refusing to carry out the required maintenance then under no circumstances should the condominium be paying any fines imposed by the township for failing to provide adequate heat.  The Board members who are refusing to carry out the work should be held accountable for the obvious incompetent behaviour.  The Board has no legitimate reason not to perform the work and if the heat is provided by a central heating system that the condominium maintains then it is obvious that the Board is not performing their fiduciary duty to maintain the condominium’s common elements.

Also, the Condominium Act should allow for owners to remove directors with a 2/3 majority of votes cast instead of a majority of all unit owners.  This makes it easier to remove directors who are obviously not doing what is best for the condominium.

The other question I wish to discuss is this one:

QUESTION:  I deliver my cheque for my monthly common expense contribution to management before the first of each month. I have received an email from management stating that I must deliver my cheque at least seven days before the due date or payment will be considered late. Can the corporation do that?

ANSWER:  The Condominium Act provides that a board may pass by-laws to govern the assessment and collection of common expense contributions. The corporation could pass a by-law requiring contributions to be made by certified cheque or bank draft — or otherwise delivered seven days before the due date.

But, in the absence of such a by-law, payment by you of an uncertified cheque would appear to be satisfactory payment unless, of course, the cheque bounces.

Of course, By-laws are supposed to be reasonable and requiring that cheques be delivered seven days, or even one day prior, to the day the maintenance fee dues are owed is clearly unreasonable.  If payments are due on the first of the month then the cheques should not be required prior to that date.  Of course, it is far easier for an owner to pay by pre-authorized withdrawals or to hand in a cheque early, but the owner should not have to hand in his/her cheque early.

Also, unless the owner has previously provided cheques that have bounced then under no circumstances should an owner be required to provide a certified cheque or bank draft.  Again, as long as the owner’s fees are paid every time, on time, there is no issue and the Board and management are being unreasonable.  This is totally unacceptable.

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