It is anticipated that, at some point, a condominium corporation’s Board of Directors will be faced with a legal challenge. The Board’s duty is to work as a team to ensure that their condominium corporation is run smoothly and is maintained to the highest possible standards. One of their main tools to ensure compliance and participation by all owners in the corporation is with the implementation of bylaws which, every condominium corporation in Albert must have. These bylaws outline many important issues such as defining common areas, pet restrictions, noise restrictions, use of common area, etc.
Individuals purchasing a condominium are also buying into the corporation and should understand that they are entering into an agreement with the corporation to abide by the bylaws. Condominium corporations have the legal right, and moreover a duty, to pursue infractions of the bylaws, including issuing fines and pursuing legal action against those who refuse to comply or are repeat offenders.
In general, upon a violation of a bylaw, the owner of the unit will receive notice from the Board explaining the infraction, detailing the actions they need to take to rectify the situation and a time-line within which they are expected to comply. Often, an owner may not know that a particular bylaw exists and this type of notice serves as a friendly, but stern reminder. In cases where an owner does not comply or has repeatedly offended, the Board may be faced with the decision whether or not to hire legal representation to further pursue the owner.
This decision should not be taken lightly by the Board. They should understand the ramifications that this type of action could have on the condominium corporation, including: high legal costs, public scrutiny, and possibly the loss of the legal battle.
In a recent decision made by the Court of Queen’s Bench of Alberta (Condominium Corporation No. 042 5636 v. Chevillard, 2012 ABQB 131), the judge ruled against a condominium corporation trying to recoup both the fines that were imposed on an owner who violated the condominium’s pet bylaws on multiple occasions and the legal expenses that were accrued throughout the process.
Regarding the collection of fines imposed by the corporation, the judge cited that the evidence brought forward was unsupported due to the fact that there was no evidence proving the bylaws in place were ever established through the correct process (a resolution), making them non-binding. The judge stated that the owner had rectified the situation and that the condominium corporation had failed to verify that the issue was still ongoing at the time the motion was brought to the court. Furthermore, the judge ruled that there was no basis for the corporation to collect such fines from the defendant and therefore the legal costs could not be recouped from the defendant.
When pursuing issues legally, the Board should have confidence in their property management company that they will provide sound advice and will direct them to legal council that is capable of understanding the Alberta Condominium Act and the corporation’s bylaws to ensure there is in fact a legal case to pursue. The above mentioned case could have been avoided with some more due diligence and better guidance from the property management company, and even more so, by a competent lawyer.
- 26 Feb 2013The Bare Land Condo Conundrum
- 14 Feb 2013Which Property Management Company is Right for You?
- 07 Feb 2013Condominium Insurance