Focus On
Shawn Pulver, principal, Pulver on Condos, Toronto

Pandemic presents new challenges for condo boards, says expert

Tuesday, January 26, 2021 @ 9:27 AM | By John Schofield

Last Updated: Tuesday, January 26, 2021 @ 12:39 PM

Amid the COVID-19 pandemic, Ontario courts are recognizing that condominium boards have the right to impose policies designed to protect their owners’ health, says an expert in condo law.

“Obviously, COVID has changed everything in terms of the way that condo law looks at things and the courts look at things,” Shawn Pulver, the founder and principal of Toronto-based Pulver on Condos, told a recent Ontario Bar Association continuing professional development session titled Developments in Condominium Law Arising from the Pandemic.

 Shawn Pulver, the founder and principal of Toronto-based Pulver on Condos class=

Shawn Pulver, Pulver on Condos

“They have accepted the fact that a policy can be enforced,” he added. “From a legal perspective, there’s been a shift there where it’s been deemed you can do that if it’s going to help protect the safety and security of residents.”

Pulver said an early indication of that shift came this past summer, when Ontario Superior Court Justice Janet Leiper delivered a Sept. 10, 2020, decision in Toronto Standard Condominium Corporation No. 1704 v. Fraser 2020 ONSC 5430. Pulver served as co-counsel for the condo corporation, as applicant, with Chris West of Toronto-based Teplitsky, Colson LLP.

Despite the building’s COVID policies prohibiting non-essential renovations, an owner proceeded with flooring work and the issue ended up in court. “The judge found that the policy in question was enforceable, that the owner should not have proceeded with this work, and the owner was required to comply,” explained Pulver.

If the work had been essential, like repairing a burst pipe, the story might have been different, he said.

For specialists in condominium law, he noted, the pandemic has been a busy time and a number of issues have emerged, including challenges related to online board meetings, health procedures, COVID-19 vaccination and the financial impact of COVID-19.

“Just the fact that people are in one place, they’re in their units, they’re on their floors and the fact that they’re there so often means it’s leading to more disturbances, more issues and more non-compliance,” he told the 59 participants in the online presentation.

“As much as owners and condos have been good at understanding the fact that you live together in this communal place, a condominium building,” he added, “ultimately it’s difficult when you get a couple of bad apples in what is otherwise a good building or a good townhouse or whatever form of condo that you’re living in.”

Still, a relatively small percentage of disputes have proceeded to litigation, said Pulver. “In my case,” he observed, “the case was deemed urgent enough.”

When it comes to virtual meetings, Pulver said the Ontario government has extended the date to March 31 to allow buildings to hold online annual general meetings (AGMs) and other meetings without a bylaw being in place. That means there will be a push on condo boards from practitioners to implement such bylaws.

Under Ontario’s Condominium Act, he said, passing a bylaw requires board approval, a signed resolution sent to owners, support by at least 51 per cent of those owners and formal registration of the bylaw.

The Act also requires each condo board to hold its AGM within six months of the fiscal year-end, but many were delayed by the pandemic, said Pulver. “There are strict requirements and everyone should be adhering to those,” he added. “You want to have it very clear (in condo bylaws) that, as a board, you can meet electronically. You can pass resolutions electronically.”

Pulver said he does not recommend Zoom for virtual condo board meetings that will involve voting because it is not well suited to tracking votes, and maintaining that record is important for preventing or settling disputes. For virtual AGMs and other condo meetings, he recommended services such as GetQuorum or CondoVoter.

As the percentage of Ontario residents receiving one of the COVID-19 vaccines gradually increases, Pulver said he anticipates potential problems around condominium corporations keeping records on who has been vaccinated and owners questioning their continued compliance with condo rules.

“I would hope that owners won’t have a problem with people knowing they’ve received it,” he said. “But it’s more of an issue of how is a corporation going to start to record that and how are they going to deal with a situation where some residents say I’ve received it, so do these rules apply to me?”

He said he would not advocate a relaxation of rules until a high percentage of people have been vaccinated and the government has clearly indicated it is safe to start relaxing rules.

With many Ontarians not working because of the pandemic or working less, some condominium corporations have faced pressure to reduce their common element fees, noted Pulver. He recommended against it.

“You’re a non-profit condominium corporation,” he told attendees. “You can’t make money, but you can’t lose money either. So if you take the position that you can just give everyone a break, you’re not going to be able to run a building.”

If owners don’t pay their fees, condo boards have 90 days to register a lien, and that lien can be enforced in the same way as a mortgage.

“I’ve not seen a huge uptick in enforcement matters in the last few months, which is good news,” he said. “But obviously some owners are not going to be able to pay and corporations are going to have to go after those owners.”

Some owners have been especially aggrieved about paying common element fees because amenities in many buildings, such as swimming pools or games rooms, have been closed during the pandemic for health reasons, said Pulver. But buildings may still be paying to maintain them.

“It may not be fair that the pool’s not opening and you’re still paying the same amount,” he said. “But the corporation has to plan essentially that it’s there and it may be opening at some point. Otherwise, six months from now, if the government says you can open the pool, they’re not going to have the money set aside to do it.”

Clear communication between condominium corporations and owners can go a long way to reducing frustration, he added. “If you're communicating the rationale for these kinds of things,” he added, “it becomes a heck of a lot easier to justify it.”

For more information on condo law and condo living, Pulver recommended resources such as the websites of the Canadian Condominium Institute, the Community Associations Institute, the Condominium Authority of Ontario and the Condominium Management Regulatory Authority of Ontario.

Editor’s note: This article has been updated to clarify that the Ontario government’s deadline for condominium boards to pass bylaws allowing for electronic meetings is May 31.

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