Owner’s indoor smoking a potentially cloudy issue

1 mai 2015 | Roberto Noce | Calgary

( Disponible en anglais seulement )

Calgary Herald

Q: Our condo’s no-smoking bylaw clearly states that smoking is not permitted in our building or in the individual units.

One owner refuses to co-operate with the board on this issue, and the smoke from his unit permeates the building. We have notified him in writing and verbally on numerous occasions, asking him to stop smoking in his unit. Can we levy a fine against him? Is the fine enforceable in court, and are we entitled to attach the charges to his title?

A: First, you need to make sure that your bylaws clearly state that the owner is not entitled to smoke in his unit. If your bylaws do not state that, then the owner is entitled to smoke in his unit. The fact that the smoke is exiting the unit into the hallways and elsewhere in the building may be an issue for the condominium corporation and not the owner. Specifically, the condominium corporation may have to spend some money to improve ventilation and other mechanical issues to prevent the release of smoke from a unit into public space. With respect to the fine (I am assuming that your bylaws give you the power to issue a fine), you would have to prove the breach in court, and if you are successful in getting a judgment in the fine amount, you will then be able to file a writ against the title to that unit. The treatment of fines is very different from condominium fee arrears.

Helpful Hint: The condominium corporation has the legal responsibility to maintain and repair condominium property. Therefore, if there are any issues with respect to ventilation, this may be the responsibility of the condominium corporation. Be careful what you ask for, as you may get it, along with a big special assessment fee.

Q: Who is legally responsible if the property manager does not give the condominium board proper legal advice on such things as creating and voting on resolutions, and proper steps to fine a bylaw violator? What happens if the property manager’s staff is guilty of swearing illegal affidavits for caveats and foreclosure actions? Could both parties be guilty of bad faith or improper conduct?

A: First, your property manager should not give legal advice. Rather, they should be providing advice on how best to manage your condominium project. With respect to legal issues, the condominium corporation should ask their lawyer. The board has a responsibility to ensure that the property manager is following their instructions. Unfortunately, the improper conduct section under the Condominium Property Act does not include property managers. This may have been an error on the part of the government when it implemented that section. Therefore, if the property manager has done something illegal, or improper, and the board is aware of the illegal or improper act, then it is the condominium corporation who should be taking steps to deal with that issue. The board cannot ignore an illegal or improper act.

Helpful Hint: You would not ask your auto mechanic for medical advice, so why would you ever ask your property manager to provide you with legal advice and/or legal direction on any issue? If it is an attempt to save money on legal fees, it could end up costing you a lot more at the end of the day to have your lawyer correct the situation.

Q: Our 18-unit commercial condominium project has a few unit owners that have ignored board directives to remove vehicles parked inappropriately. How do we charge the offenders the fines that are set out in our bylaws? Our bylaws do not describe the process. A: Assuming that your bylaws have given you the power to issue a fine, then you would issue the sanction against the owner for that particular violation.
If the owner refuses to pay, to enforce the fine amount you would be required to follow section 36 of the Condominium Property Act.

You have no authority to automatically withdraw the amount of the fine from the owner’s account. In fact, the condominium corporation has to prove the breach in court before it can enforce the fine.

An outstanding fine cannot be treated in the same way as condominium fee arrears.

Helpful Hint: There is a process under the Condominium Property Act that a condominium corporation must follow when enforcing the payment of a fine. Failure to do so may expose the condominium corporation to a claim of improper conduct.

Q: Our bareland condo townhouses were built at an angle. We share a privacy wall with our neighbour (a current board member), who has extended his deck beyond the shared wall to make his yard square.
All of the rest of the units along our side have the decks square to the unit and within the privacy walls.
Should this variance from the rest have been approved by the board? The neighbour’s new deck has changed the continuity and esthetics of the project.

A: I would have to review your restrictive covenant relating to the privacy wall and condominium plan to determine whether or not there has or has not been a breach.
It is impossible to provide you with an answer without doing some review of the documents. You should contact the condominium corporation’s lawyer.

Helpful Hint: Sometimes, the registered documents on title and the condominium plan become the most important documents in trying to understand exactly what can or cannot be done.

Q: I am planning to buy a condo in Vancouver, and I will rent it to my son at market rates. Since I am an Alberta resident, which credit laws apply to me? I expect my son to rent the condo for the rest of his life.

A: First, the laws relating to condominiums in British Columbia would apply for this condominium unit even though you live in Alberta.

With respect to your financing, I would ask your bank to provide you with assistance in getting the appropriate mortgage.

Helpful Hint: It is the law where the property is located that will apply, and not where you live. As well, your banker would be the best person to ask about financing options.