In May 2001, the Condominium Act (the “Act”) was amended to introduce the position of owner-occupant director. Since that time, other amendments and regulations have been introduced, to assist condominium corporations with owners’ meetings, board meetings and the voting process. More amendments and regulations are on their way.
The Owner-Occupant Position
The amendments are intended to deal with ways to protect the rights of unit owners in the voting process. The owner-occupant position (Section 51 (5) of the Act), has often been misunderstood and misapplied. Many corporations either do not have an owner-occupant position, even though they are required to have one, or have one but have not conducted the vote correctly.
What is an owner-occupant director’s position?
It is a director’s position that currently, must be reserved for voting by owner-occupant unit owners. Owner occupant units are those residential units that have not been leased within 60 days before the notice of meeting.
It does not matter whether the director elected to the position occupies their unit. Only owners who occupy their units are eligible to cast a vote for the owner occupant position.
When they come into force, the amendments to Section 51 (5) of the Condominium Act will be a welcome amendment since it will change the term owner-occupant to “non-leased voting unit”. The reserved position will no longer be mandatory. Instead, it will only be required if: (i) a minority of the units are non-leased voting units; and (ii) an owner of a non-leased voting unit makes a request, after the preliminary notice, for the election to include a non-leased director’s position.
So what have been the mistakes?
Mistake #1– Giving commercial units the right to vote for an owner occupant directors position.
- It doesn’t apply to commercial units, only residential units
Mistake #2- Creating this position in a condominium corporation where more than 85% of the units are rented (i.e. less than 15% that are owner-occupied).
- It doesn’t apply to condominium corporations if less than 15% of the units are owner-occupied units.
What happens if after the preliminary notice or notice of meeting goes out, there is a change in ownership? Who gets to vote?
Mistake #1– the owner can only vote if they received the notice of meeting.
Since the 2017 amendments, as long as the new owner is on the Corporation’s records, they can vote (even if they didn’t receive notice).
Act before the 2017 Amendments
51 (1) To vote at a meeting of owners, an owner must have been entitled to receive notice of the meeting and must be entitled to vote at the meeting.
Act following the 2017 Amendments
51 (1) For an owner to vote at a meeting of owners, the owner’s name must appear in the record of the corporation required by section 46.1 or be required by that section to appear in that record and the owner must be entitled to vote at the meeting.
This amendment makes sense and will now no longer require the previous owner to sign a proxy in favour of the new owner in order for the to vote.
Quorum for Board Meetings and Decision Making
What happens when there are vacancies on the board?
- As long as there is a quorum, the remaining directors can continue to conduct business.
Do the remaining directors have to fill the vacancy?
- The Act provides that where a vacancy arises on the board, as long as quorum is still in place, the remaining directors “may” fill the vacancy until the next AGM. There is therefore, no requirement to fill the vacancy up until the AGM.
What is the voting requirement for decisions where the vacancies have not been filled?
- Unless a by-law provides otherwise, it is a majority of the directors at a meeting. So, for example, if there are 5 positions, but only 3 directors remain on the board and attend a meeting, 2 of the 3 are needed to make a decision.