A recent CAT decision stresses the importance of incorporating policies into rules otherwise those policies will likely not be enforceable against a unit owner or resident.
In Tartakovsky-Guilels v. York Region Condominium Corporation No. 829 the Tribunal found that the corporation’s visitor parking policy which contained procedures for registration of visitors vehicles, was not enforceable because the steps and requirements for visitor parking were set out in a policy and not enacted as rules.
The Tribunal in finding that the visitor parking policy was not enforceable against the unit owner also ordered that the owner be entitled to reimbursement for a ticket the owner received as well as the owner’s costs relating to the CAT application ($200).
While policies and rules are often used interchangeably, they serve distinct purposes and function differently and it is important to understand the difference between the two.
Condominium Policies: The Administrative Backbone
Condominium policies are the internal procedures and guidelines set by the condominium corporation’s board of directors to help manage the day-to-day administration of the corporation. These policies generally cover operational and administrative matters, like how common expenses are collected, the process for obtaining approval for renovations/alterations, or how disputes between owners and the corporation are handled.
Policies are not typically included in the condominium’s governing documents but are often designed to complement the Declaration, By-laws, and Rules. These policies can be flexible and changed by the board as needed, without the formalities required for amending rules or by-laws.
Common Examples of Policies:
- Parking permit application processes.
- Procedures for reporting repairs and maintenance issues.
- Guidelines for common area booking (e.g., party rooms, guest suites).
- Fee collection or payment deferral options.
Condominium Rules
Condominium rules, on the other hand, directly govern the behavior of residents, owners, and visitors/guests. Rules ensure that everyone adheres to certain standards of conduct, promoting safety, security, and comfort. These rules must be reasonable and aimed at preventing activities that could negatively impact others living in the condominium community.
According to Ontario’s Condominium Act, 1998, rules must be created for the purposes of:
- Promoting the safety, security, or welfare of owners and of the property and assets of the corporation.
- Preventing unreasonable interference with the use and enjoyment of the units or common elements and assets of the corporation.
The process for establishing or amending rules is more structured than with policies. The board must give notice to the owners and allow for a review period. Owners may challenge the rule by requisitioning a meeting and holding a vote. Without any opposition, the rule becomes enforceable after 30 days.
Common Examples of Rules:
- Pet ownership restrictions (e.g., size or breed limits).
- Noise restrictions, such as quiet hours.
- Prohibitions on short-term rentals (e.g., Airbnb).
- Limitations on the use of common amenities, like pools or gyms.
How Policies and Rules Interact: An Example
To further clarify the distinction, let’s look at a common condo issue—pet management.
Policy: The board may create a policy for registering pets with management to ensure that all pets are documented. The policy could outline the process, necessary forms, and deadlines.
Rule: The condominium may have a rule that restricts residents from owning certain types or sizes of pets, or limits the number of pets per unit.
In this case, the rule sets the standard for pet ownership, while the policy dictates the administrative process for compliance. Residents must follow both.
Enforcement of Policies and Rules
While both policies and rules are essential for the smooth running of a condominium, their enforcement can differ. Rules, having more legal weight, are enforceable under the Condominium Act, 1998. Owners or residents who violate the rules may face legal action and costs as set out in the Declaration and the Condominium Act, 1998. Policies, being more administrative, are usually enforced through internal mechanisms, such as notifications or reminders, but are less likely to result in legal proceedings unless tied to a breach of a rule.
Conclusion:
The one important takeaway here is if you want to ensure that your corporation’s policies are enforceable against a resident, then it is time to review those policies and get guidance from legal counsel as to how to incorporate those policies into enforceable rules.
