2. Is there a specific date each spring and fall by which legally the corporation must turn on/off the heating/air conditioning system?
This is a very common question in the spring and fall each year. The Condominium Act does not address these details, nor do any Declarations or bylaws that most Condominiums have in place. Therefore, we have to look at the process instead of the regulations to understand it better.
Multiple story Condominiums are commonly heated or cooled by a “closed loop system”. This is a system that sends heated or cooled liquid to each unit in pipes. The system continually circulates through either a boiler or a chiller in order to keep the liquid at the desired temperature. Each unit individually extracts the heat or cooling from the liquid by way of their in-suite units. These systems do not provide heating and cooling at the same time. That is why the problem is common.
The proper administration of a condominium is a complicated balancing act. It is difficult, if not impossible to find the exact balance whereby all Owners and residents in a high-rise condominium will agree. Now throw in variables such as north exposure (cold) versus south exposure (hot), low floor (cold) versus high floor (hot), age and health of the occupants and their tolerance to heat or cold, and you can see that there is no one right answer.
Most Managers coordinate with the contractor who does the changeover from heating and cooling to try and have necessary maintenance done and everything readied to be switched over for mid May and mid October. In preparing this way, when the weather does change, it will be easier to switch over the system with shorter notice. Since many systems can only provide either heat or air conditioning, and it is a multiple hour process to switch from one to the other, it is only done once per changeover season. Also, keep in mind that every building wants to change over on the very same day! There are not enough technicians in the province to complete that task in one day. It is usually only possible to choose which week to switch over, and how often is the weather forecast accurate for a whole week in advance?
So, next time you want to ask when the heat is coming on, maybe you should instead ask, “Long sleeved shirt, or short….”
3. What is the maximum percentage that the corporation can increase monthly maintenance fees by each year?
Common element assessments are determined by the Board of Directors through a budgeting process whereby they, with managements assistance, estimate all the costs of operating the condominium for the next year, including reserve contributions, utilities, wages, contract, repairs and maintenance, shared facilities and everything else that the condominium has to pay for. In preparing the budget the board takes into account prior history, current conditions and projected pricing for all budget lines along with any other factors that may be relevant. Owners should understand that their Directors, without exception, take great care not to spend unnecessarily as they know that cost increases have to be borne by the owners and the budget increase will be closely scrutinized. The total of the budgeted costs is then apportioned to each owner in accordance with their percentage interest as shown on Schedule D to the declaration.
There can be no upper limit to costs; whatever it costs to operate the condominium each year has to be paid by the owners. The only way to significantly reduce costs in the long run is to reduce or eliminate services presently enjoyed by owners and this leads to a building that becomes run down and a poorer place to live. Most costs increase at least with inflation and owners should expect that their assessments will rise by at least that amount every year. Assessments may increase by more than inflation should there be, amongst a host of other circumstances that raise costs, extra repairs or cold winters and warm summers that push utility costs up.
Issues of noise and odours are dealt with in the Act as well as the corporation’s declaration, by-laws and rules. Under the Act, section 7(4) provides that the declaration may contain conditions or restrictions with respect to the occupation and use of the units or common elements. Section 17(3) goes on to say that the corporation has a duty to ensure that the owners, amongst others, comply with the Act, the declaration, the by-laws and the rules. Under section 56 of the Act, the board may make by-laws to govern the use and management of the assets of the corporation. Pursuant to section 58 of the Act, the board may make rules with respect to the use of the common elements and units to prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation. Section 134 of the Act allows an owner or a condominium corporation to ask the court for an order enforcing compliance with any provisions of the Act, the declaration, the by-laws and the rules. However, the Act provides that when there is a disagreement between the corporation and the owner regarding the declaration, the by-laws or the rules, such a compliance order is only available if the mediation and arbitration has been attempted and has failed. This, of course, does not apply to breaches of the Act, which allows for an immediate application under section 134. It is important to note that other court applications may also proceed without the necessity of mediation and arbitration. Under section 135 of the Act, a court can make any order the judge deems proper if the court determines that the conduct of the owner or corporation is, or threatens to be, oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.
The Law of Nuisance
Noise is governed under the general law of nuisance. According to the legal texts on the subject, a person may be said to have committed the tort or wrongful act of nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land, where in the light of all surrounding circumstances, this injury or interference is held to be unreasonable. However, not every nuisance is legally actionable. In the case of Schenck v. The Queen, the court held that “not every invasion of a person’s interest in the use and enjoyment of land is actionable. The principle of give and take, live and let live is fundamental to the adjustment of claims in the law of nuisance”. The issue of reasonableness was discussed in Royal Anne Hotel Co. Ltd. v. Ashcroft by the British Columbia Court of Appeal. The court stated that “it is certainly not every smell, whiff of smoke, sound of machinery or music that will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear, according to the accepted concepts of the day, that it should be an actionable wrong.”
As you know, condominium living, by its very nature, involves groups of people living together in close proximity to one another. By necessity, boards of directors would be well advised to become familiar with the law of nuisance. In the words of Florida Associate Justice Driver in Sterling Village Condominium Inc. v. Breitenbach, “Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less.”
5. I purchased my new condo from Developer plans and now that I have moved in the square footage is smaller than outlined in the plans. What can I do?
Most Agreements of Purchase and Sale for new condominium units contain provisions that protect a Developer in these situations. Such provisions may include that the square footage listed in a Developer’s drawings are estimates and do not form part of the Agreement and/or that the floor area of the unit may vary from that stated by a certain percentage. The Agreement may also provide the standard by which size calculations are made, including whether measurements are to be taken from the exterior wall surface or interior wall surface. If, however, an agreement does not contain such provisions or a difference in square footage is so substantive that a Purchaser, in essence, does not receive what he/she bargained for, the Purchaser may consider bringing a claim against the Developer for damages. In any event, recourse is often limited to a potential abatement of the purchase price from the Developer and negotiations with the Developer for such an abatement can be explored.
The best way that Purchasers can protect themselves is by reviewing (or having their lawyer review) the Agreement prior to signing or within the 10 day rescission period to evaluate the above-noted provisions and, if necessary, negotiate with the Developer for amendment(s) to the Agreement to provide more certainty with respect to the unit size. If the square footage of the unit is fundamental to the Purchaser, a clause setting this out should be included in the Agreement and may be helpful in advancing a claim for damages later on in the event of a breach. While the warranties provided under TARION do not cover discrepancies in square footage, there is no down side to listing such discrepancy among deficiencies at the pre-delivery inspection (PDI) and trying to have the Developer recognize and rectify same.
6. How long do I have to continue paying Occupancy Fees? Isn’t there a timeframe by which the Turnover meeting has to take place?
Occupancy fees are paid until final closing of your unit. Final closing happens after registration of the condominium.
The occupancy fee is made up of three elements.
- The unit’s common element assessment amount based on the budget commonly referred to as maintenance fees.
- The proportionate share of the property tax. The declarant has the right to charge each unit their share. Until final closing the property tax bill is issued to the declarant in whole and is not charged separately on each unit until the corporation is registered. The tax bill amount charged is adjusted on closing in relation to the actual tax bill amount.
- The declarant has the right to charge interest on the unpaid balance of the purchase price. The interest rate is regulated at prime plus 2%.
The turnover meeting must be called within 21 days of when the declarant closes more than 50% of the units and the meeting must be held within 21 days of the calling.
There is no prohibition whatsoever in the Condominium Act 1998 (the "Act") against unit owners going door-to-door to solicit proxies from fellow unit owners. However, there may be limitations regarding the soliciting of proxies in the condominium corporation's declaration, by-laws or rules. Accordingly, before proceeding to solicit proxies, a thorough review of the declaration, by-laws and rules is highly recommended. Whether any such limitations in the corporation's declaration, by-laws or rules, if present, are in fact enforceable depends on the nature of the limitations; however, an outright prohibition would likely not be enforceable.
8. The owners are not happy with the current Board of Directors – Do we have to wait until their terms are up in order to replace them?
Owners do not have to wait until the term of any Board member expires in order to remove and/or replace any director(s) of the Corporation. Section 46 of the Act provides that the owners of at least 15% of the total units are entitled to submit a Requisition (i.e. a petition) asking for the removal of one or more of the directors of the Corporation. These owners (the "Requisitionists") must be listed in the record of owners and mortgagees that the Corporation is required to maintain. These owners must also be entitled to vote, under the Act.
The Requisition itself must be in writing and must contain the following information regarding each director that the Requisitionists wish to remove: 1. the name of the director; 2. the reasons for the proposed removal; and 3. whether the director holds a position on the Board for which only an owner of an "owner-occupied unit" may vote. The Requisitionists must sign the Requisition. This means that the signature of each Requisitionist should be on the same page as (and typically below) the required written information (i.e. the above points 1 to 3) on the Requisition. If pages, containing only signatures of owners, are simply attached to a Requisition (in an attempt to achieve the required 15% signature threshold), the Requisition will likely be invalid.
The Requisition must be delivered personally or by registered mail to the President or Secretary of the Board of Directors, or it may be deposited at the address for service of the Corporation which can be found in the Declaration or in any registered Notice of Change of Address form (see s.108 of the Act). Upon receiving a valid Requisition, the Board of Directors has a duty to: (A) add the requested removal and possible replacement of the director(s) to the Agenda for the next Annual General Meeting, but only if the Requisitionists request this in the Requisition itself or otherwise consent to this in writing; or (B) otherwise, send a notice of meeting to the owners and hold a meeting of owners, to vote on the removal and possible replacement of the director(s), all within 35 calendar days of receiving the Requisition. If the Board does not comply with the above, a Requisitionist may call the meeting i.e. send the notice of meeting to the owners, and the meeting of owners must be held within 45 calendar days thereafter. Furthermore, any such Requisitionist is entitled to be reimbursed by the Corporation for the reasonable costs incurred in calling the meeting of owners. Regardless of who (i.e. the Board or a Requisitionist) calls the meeting, it is essential that the Agenda for the meeting clearly discloses that the owners will be voting on the removal and possible replacement of any director(s) that the Requisitionists wish to remove as per the Requisition.
The ability of owners to vote for the removal of directors before their terms expire, pursuant to the above-noted Requisition procedure, is an essential democratic right of the unit owners. As such, upon receipt of a valid Requisition, directors must always remember their duty to act honestly and in good faith in the manner in which they treat the Requisition. At the same time, owners should be aware that, under certain circumstances, repeated Requisitions for the removal of directors, over a short period of time, could be a factor leading to the appointment of an Administrator for the Corporation (see s. 131 of the Act)."
Odour transfer in high-rise buildings is a frustrating reality. While the building mechanical design incorporates some features intended to minimize odour transfer, such as pressurized corridors, this design methodology is far from perfect and there is inevitably some odour transfer that cannot be prevented.
If an owner experiences odours in their suite, they should do a little investigation of their own to gather information before contacting management. This will help to identify if the smells represent a deficiency that can be repaired, or if they are experiencing normal conditions. This will help prevent false expectations and minimize unit-owner frustration.
Odour coming in around the entrance door from the corridor can relate to a variety of causes:
- Make-up air unit not operating (or providing an insufficient amount outdoor air) so the corridor is not sufficiently pressurized. This allows odours from one suite to travel into the corridor and then into other suites. Repairing or rebalancing the make-up air should help.
- Strong odours can leave one suite and enter other suites even when the corridor is adequately pressurized. The only solution here is to ask Management to make sure that the odour generator is running their exhaust fan to minimize odours. If they are, then residual odour transfer through the corridor would unfortunately be considered normal.
- Strong winds, exterior temperature extremes, open windows, and excessive exhaust can impact pressure in the building causing some odour transfer that wouldn’t happen under normal conditions. This should only happen sporadically and is considered normal. Make-up air unit drawing in odours from the exterior and pumping it into the corridors. In this case, the odour would be present on all floors of the building. The solution is to ask Management to try to relocate the source of the odour or the intake for the unit, if possible.
Odour coming in through your bathroom or kitchen exhaust generally indicates an outdoor source. A neighbour may be smoking or cooking on their balcony or smells may be being exhausted from one suite and then drawn back into yours. Typically the back-draft damper on the exhaust fan outlet (at the exterior wall) will be found to be sticking open. This allows air to travel backwards through your exhaust ductwork and into your unit. A sticking back-draft damper can be repaired. This may be a unit-owner or a Corporation responsibility depending on your declaration. If odours still penetrate when the damper is fixed, the best solution is to run the fan when the offending odour occurs so the air is flowing outward instead of inward.
Odours in other areas of your suite (away from the bathroom exhaust, kitchen exhaust hood, and away from the corridor door) generally indicate transfer through a floor or wall. These floors and walls are also fire separations, so they should be continuous and incorporate “smoke seals” (which are also “odour seals”) in buildings constructed after 1990. In this case, the odour transfer may also indicate a breach of the fire separation. Typically property management will need to hire a consultant to do a pressurized smoke test to determine the source of this type of odour transfer. Pre 1990 buildings had fire-stopping without smoke sealing, so unfortunately, odour transfer across these walls or floors would be considered normal.
10. I received a notice from the Board of Directors of my condominium indicating that I have to get rid of my dog. Can they make me do this?
There are several circumstances in which a condominium corporation can demand the removal of a dog or other pet.
1. Pets may be prohibited in your condo
The declaration, by-laws or rules of your condominium may contain a general prohibition on pets or restrictions on the types of pets that may be kept by residents. Purchasers of condo units are deemed to be aware of the provisions of their condo documents and owners and occupants (including tenants) of a condo unit are required to comply with them. Read before buying or renting!
2. The rules may allow for the board of directors or the property manager to declare a pet to be a nuisance and demand its removal
If your dog has a history of creating noise or nuisance, or poses a potential threat to the safety of other occupants or to the property, the condominium corporation may demand its removal and the unit owner or occupant must comply with this demand.
3. Weight or other restrictions
Many high-rise condos prohibit dogs over a certain weight or height because larger animals may make people uncomfortable in confined spaces such as elevators and hallways and may pose difficulties during emergency evacuations. If your dog exceeds any such restrictions, the condominium corporation may demand its removal and the unit owner or occupant must comply.
If you have a dog or other pet or intend to get one, it is important to be familiar with any provisions regarding pets in your condo corporation’s declaration, by-laws and rules before purchasing or renting a unit. Because unit owners might be held responsible to reimburse their condo corporation the hefty costs of enforcement (through mediation, arbitration or litigation), it is wise to get legal advice and representation promptly after receiving a demand from your condominium board or property manager. While it may be possible to argue that such rules are not applicable or enforceable in some circumstances, the cost of raising those arguments as part of the mediation, arbitration or litigation processes can be ruinously expensive, especially if the argument is unsuccessful.
11. I received a notice of a special assessment. Can the Corporation charge me this amount in addition to my monthly fees?
The Condominium Act, 1998 is silent about a Corporation's right to levy a special assessment, but that doesn't mean the Board does not have the right to charge amounts in addition to the regular monthly budgeted fee.
For most Corporations, the General Operating By-law (often by-law #1) will contain the Corporation's authority for special assessments and it is often referred to as "Extraordinary expenditures". It is within the By-law document that you can find details of the authority in this regard, including required notice to Owners.
It is important to note that a special assessment is a common expense (or maintenance fee) and is collected in the same manner. If the Corporation had the authority to levy the special assessment, it is important to make sure you arrange for payment in order to avoid a lien against your unit.
12. The Property Manager won't allow me to store anything in my parking space. Why isn't this allowed?
The Ontario Fire Code restricts storage in parking spaces for safety reasons. In the event of a fire, visibility can be restricted due to smoke or flames and storage of any item (including things like bicycles or shopping carts) become hazardous for fire fighters and persons trying to exit the garage.
Condominium Corporations in Ontario must ensure that Owner or Resident do not create any condition on the property that increases risk to persons or property. Accordingly, all Corporations must strictly enforce this requirement of the Fire Code:
12.00 Div B – 22.214.171.124. (1)(2) Combustible materials shall not be accumulated in or around in any building in such quantity or such location as to create a fire hazard. Combustible materials shall not be accumulated in any part of an elevator shaft, ventilation shaft, means of egress, service room or service space, unless the location, room or space is designed for those materials.
13. I suspect that my Property Manager isn't licensed. How can I be sure and what can I do about it?
Since November 1, 2017, all persons performing "Condominium Management Services" must be licensed with the Condominium Management Regulatory Authority of Ontario (CMRAO). In addition, any licensee must provide a copy of their license upon request by any person.
If you aren't comfortable asking your Manager to see their license, the CMRAO has a public registry where you can get this information:https://www.cmrao.ca/en-US/public-registry/
If you have confirmed that your suspicions are correct, it is important that you report the unlicensed individual to the CMRAO: https://www.cmrao.ca/en-US/complaints/
14. By law, what is the minimum temperature a condominium corridor must be set to in the winter months?
The answer to this question might vary depending on where you live. For example, the Toronto Property Standards Bylaw (Chapter 629 of the Toronto Municipal Code) includes temperature limits for heating systems within your condominium unit, but not in the corridors. For the corridors, they only require ventilation and that the system be kept in a state of good repair. “§ 629-39. Ventilation. A. Adequate ventilation shall be provided to all areas of a building, and every ventilation system or unit shall be regularly cleaned, kept in good repair and maintained in good working condition at all times to ensure its proper operation.” The bylaws are concerned with ensuring that fresh air is provided, not with the temperature of that air. As a matter of fact, there are many older apartment buildings in Toronto that have completely unheated corridor air supplies and they comply with the requirements. These are more cost-effective because heating 100% fresh air in the winter is a costly undertaking; but it does mean that you need your coat on when you leave your unit, not just the building! Most condominiums have heat on the corridor make-up air supply and the temperature settings are in the control of the building operator. There is a balance to be struck in energy consumption and comfort related to the temperature that the corridors are set to. Some occupants prefer warm corridors and others prefer them to be cool in the winter.