You are a property manager and asked in a Board meeting about a not so complicated matter, at least it seems uncomplicated at first glance. A Board member asks, “What law applies here to this situation?”
Most property managers gravitate to The Condominium Act (1998); however, that may not necessarily be correct depending on the circumstances.
Seasoned property managers all know the correct answer is, “Let me get back to you on that question.” If pressed, your answer should include, “I am not a lawyer and the laws that impact condominiums are many and can be very complicated.” A call to experts is always the right move.
Which law do you use? Which law actually applies? What law takes precedence over other laws? Can several laws apply at the same time?
Unless you have a law degree and work in the condominium space, questions like these may seem like walking into a landmine. In fact, it can be. Whatever answer you may give as a property manager may have negative implications on decisions that the Board will make.
Giving the wrong advice may all trace back to your (incorrect) answer(s). Riskboss always provides strong advice to property managers and Boards never to guess but always get the right answers and legal advice from the right people.
At Riskboss, we get calls almost weekly for example, on whether or not to allow police access to a site when police haven’t been called by a resident, it is not an emergency, or they don’t have a search warrant or production order. How do you deal with police when they demand access to records and CCTV without a warrant and when there is no emergency, but then press very hard for access? Sometimes being helpful to the police can have very negative implications if not handled properly.
Laws in Canada
Riskboss often gets inquiries on how condominiums should apply criminal law, provincial laws, and local laws versus depending solely on the building Declaration, Bylaws, and Rules. In general, laws are layered into a hierarchy. One law may take precedence over other laws and may also take priority over condominium Declarations, By-laws, and Rules, etc.
Generally speaking, federal laws take precedence over provincial laws, which take precedence over local by-laws.
Federal laws apply across the entire country, such as criminal law, human rights, and constitutional matters.
Provincial laws apply to matters within the province of Ontario, such as employment standards, workplace health and safety, and family law matters.
Local By-Laws apply local matters such as noise, parking prohibitions, vendors rights and obligations, signage, etc.
In short, higher authorities shall always take precedence over lower forms of governance.
Pretty simple, right? Okay, let’s dig into this further with some examples.
The Condominium Act (1998) is basically consumer protection legislation that regulates condominium life in Ontario. All condominium managers know full well that the Declaration and By-laws cannot contradict the Condominium Act. When a Board creates/adopts a new building Rule, these also cannot be inconsistent with the Condominium Act or with the Declaration, By-Law, or with federal, provincial, or local City By-laws.
Let’s use a real-life example of something Riskboss became involved in. What about when a Rule you are planning to implement contradicts with a local City By-law. Take for example the City of Toronto Noise By-law. This By-law is crystal clear that no noise that actually, ‘disturbs or is likely to disturb’ residents can be made at any time 24/7/365. Contrary to popular belief, there is no 11:00 pm noise exemption rule that allows noise prior to that time or the so called, ‘reasonable noise test’.
Riskboss became aware of a Board that wanted to create a building Rule relaxing the City Noise By-law in that residents could make noise until 10 pm. In short, this Rule got shot down pretty quickly by the condominium corporation lawyer who argued that you can make a Rule that will enhance or make a law more stringent, but you cannot make a Rule that contravenes, relaxes, or makes a law more lenient.
The City of Toronto Noise By-law is a very powerful law but rarely used in condominium communities as property managers gravitate to their building Rules and the Condominium Act for enforcement of infractions. However, nothing stops a resident that is not satisfied with locally generated outcomes from attending to see a Justice of the Peace at a local court and laying an Information (a charge under the City Noise By-law) against a neighbour or for that matter, serving the neighbour (and the corporation) with a Statement of Claim under civil law. All these processes can be used in such an instance and all at the same time.
Let’s look at another example. The City of Toronto enacted a City By-Law that allows for short term rentals. In Toronto, anything less than 28 days is by virtue of this By-law a short term rentals. As such owners of properties wishing to engage in such activities must administer their short term rentals within the City administrative rules, licensing, reporting, fees, etc. under the City By-law, and yes of course, pay taxes.
But what happens when a condominium corporation sets a minimum time period for all rentals, for example, six months, or one year? What takes precedence? In this case, the Condominium Act allows condominium corporations to enact Rules that make more stringent local By-laws and as such, the six month / one year Rule wins the day and applies. Residents claiming that they can have a short term rental under a City By-law when a one year condominium building Rule is in existence, don’t have a leg to stand on.
Expert condominium lawyer Gerry Miller, Managing Partner at Gardiner, Miller, Arnold LLP (GMA), points out that he and the other condominium lawyers at GMA are faced with these types of questions frequently. He gives the example of a condominium building that has a no pet provision in its Declaration that the corporation has successfully enforced over the years under the Condominium Act.
An owner then brings in a dog as to live in the unit permanently. The property manager, on the Board’s instructions, orders the removal of the pet. The owner refuses arguing the dog is a service animal. The owner obtains a letter from his doctor and now the corporation is faced with a dilemma because the Human Rights Act trumps and takes priority over both the Condominium Act and the Declaration.
Miller suggests, “Before you take action assuming you are within your rights under the Condominium Act it is best to seek confirmation from legal counsel because the answer could save the Corporation a lot of time and money”.
Unless you have the time, money, and energy to get a law degree, leave it to the experts.
In the long run, you will be glad you did.