It is not uncommon for our Condo Group to deal with situations in which one or more residents are engaging in problematic behaviour that the Board wishes to address. However, in many circumstances the conduct does not necessarily contravene a specific provision in the Condominium Act or the condominium corporation’s declaration, by-laws or rules. Boards, fellow residents and management will often get frustrated in such situations, as the problematic behaviour becomes a nuisance and creates administrative and governance headaches. Frequently, the objectionable conduct does not pose a risk to residents, there is no property damage, insurance premiums are not being adversely impacted, and the conduct does not deal with common issues covered in condominium documents like noise and pets.
We have dealt with a wide range of general nuisance situations, including:
- Relatively minor hoarding within units that does not constitute health/life safety concerns but generates odour or similar complaints.
- Residents that use an inordinate amount of property management’s time raising personal and objectively minor or trivial issues.
- Family members of residents who do not have a power of attorney, yet intervene on behalf of residents.
- Residents making excessive document requests from property management.
- Short-term rentals/hoteling such as Airbnb.
- General harassment of management, staff, corporation agents and other residents.
We have found that a particularly effective method of dealing with such situations is to ensure that the corporation has passed rules that are current, detailed and customized to the realities of that particular condominium corporation. Too often, rules are overlooked and corporations rely on boilerplate rules prepared by the declarant. Even rules updated six or seven years ago may be outdated. Alternatively, rules are updated without proper consideration and consultation as to the sort of issues that are currently arising in the condominium.
Section 58 of the Condominium Act authorizes the board to make reasonable rules consistent with the Act, declaration and by-laws with respect to the use of common elements and units. Such rules must either:
- promote the safety, security or welfare of owners and of the property and assets of the corporation; or
- prevent the unreasonable interference with the use and enjoyment of the common elements, units or assets of the corporation.
While the aforementioned provisions of the Act are particular about the sort of rules that can be passed (and the Act mandates certain notice requirements), the stipulated parameters still allow for a fair amount of leeway to address many nuisance situations.
Having a well-drafted declaration and new by-laws without updating the condominium’s rules is akin to purchasing a bespoke suit without a tailored dress shirt to accompany it. The two pieces of clothing work in tandem and both are fundamental to one’s wardrobe. Similarly, boards and management must pay attention to the corpations rules and ensure that they are current, work in tandem with and complement the declaration and by-laws, and serve the needs of the corporation’s owners and residents. Comprehensive rules will give more teeth to clauses in declarations and by-laws that provide for chargebacks for rule contraventions. It is far more efficient to engage in a proactive consultation process and have legal counsel prepare rules tailored to the nuances and situations particular to the condominium corporation, than to reactively deal with ongoing nuisance situations.
We appreciate that condominium corporations are hesitant to create new documents with the impending passing of the new Condominium Act. That said, from our extensive industry involvement, consultation and review of the proposed Act, there has not been any proposed changes with respect to rules.
