As we continue to deal with questions and concerns expressed by board members, managers and owners, we keep reminding our clients to remember what our respective roles are in this crisis. Throughout this process we must remember to be guided by health professionals through our public health officials and comply with any directives from the government. Remember to stay in your lane!
Here are a number of items that have come up over the past 24 hours:
- We need to do a Comprehensive Reserve Fund Study. If we wait any longer, we will not comply with the requirements of the Condominium Act. Is this okay?
Answer: The answer is similar to the other responses we have given relating to statutory timelines under the Condominium Act and other legislation, such as the AGM requirement to hold a meeting within six-months from the fiscal year-end. Our position is that it is reasonable to postpone obtaining a reserve fund study that requires a site visit based on the overriding concern as to the safety of the residents. Of course, any delay would require that an explanation be inserted in any status certificate.
- We are in the midst of getting our Performance Audit done but not we are advised that this may be delayed. How do we comply with the Condominium Act’s timeline and Tarion?
Answer: Tarion has provided an advisory that for the period of March 13 – April 13, 2020, all conciliations, inspections, common element meetings and other possible in-person interactions booked over the next month will be postponed and rescheduled to the earliest available date after April 13, 2020. The advisory further advises reluctance to open your home to trades and builders will not be viewed by Tarion as denied access during this period. All repair timelines will be suspended until April 13, 2020. Any time between March 13, 2020 through April 13, 2020 will not count towards the repair period. The advisory did not explicitly specify timelines for condominium corporations, but we believe Tarion will likely provide the same extensions to condominium corporations as it has to builders. However, we recommend writing to the Tarion representative for the file and obtain explicit written confirmation of the extension.
- We are concerned about the short-term rental guests and the additional risks of COVID-19 to our residents and building. Can we prevent short term rentals even though our declaration permits it?
Answer: In our opinion, the COVID-19 Epidemic does expand the application of Section 117 of the Condominium Act, which prohibits the existence of a condition or carrying on an activity in a unit or in the common that is likely to damage the property or cause injury to an individual. Short term rentals during the current COVID-19 pandemic poses a unique risk – guests who may be travelling, people who may be trying to rent to stay away from others who have symptoms/been diagnosed with COVID-19, etc. The Corporation also has an obligation to manage the property and the common elements, and to ensure that the property is reasonably safe for those present. The presence of transient renters on the property exposes the residents to additional risk and we believe that they can be temporarily prohibited until the state of emergency and need for social distancing is lifted by the relevant public bodies and governmental authorities.
- Some owners have asked management whether they can delay their payment of common expenses because they have been laid off. What should we do?
Answer: The government has not suspended or extended the three-month lien period set out in the Condominium Act. It is important for the Corporation not to lose its lien rights, as this would prejudice all of the other owners who may have to subsidize due to an owner’s non-payment. However, if the Corporation has a sufficient operating fund surplus, some leniency and flexibility may be feasible. As long as a unit owner would not be in arrears of an amount greater than 3 months’ worth of common expenses, there are ways to protect the interests of all of the other owners while also permitting extra time for some owners to make common expense payments. Legal counsel should be consulted to discuss possible arrangements that may be appropriate for your Corporation.
- A group of owners have approached the board with suggestion about forming committee to bring meals to owners that are self-isolating and request help. Should the board get involved?
Answer: The Corporation is responsible to control, manage and administer the common elements and the assets of the corporation. The proposed committee is outside the “jurisdiction” of the Corporation and its board. Caring for fellow residents is admirable but the Board should not take on that role. Instead, an ad hoc group of owners (even if they or some of them are board members) can form a group that can assist those in need. Management and the Board can act as facilitators by directing both people in need and people who want to help to this group.
- We have owners that are in the middle of renovations. Should we permit this to go on? What about new requests?
Answer: All owners and residents should be strongly encouraged not to have any unnecessary visitors on the property, including contractors. Residents should be practicing social distancing to help flatten the curve; the presence of unnecessary visitors on the property exposes residents to undue risk. This is not the time for owners to be performing renovations. While there may be some extenuating circumstances and reasons for some work to continue, generally speaking, owners should be advised to suspend renovations. For any ongoing renovations, the Corporation can also be stricter with respect to ongoing construction noise and can advise residents/owners that construction noise must be kept at a minimum due to residents remaining at home for social distancing and self-isolation. Except in extenuating circumstances, Board approval for new requests can be delayed.
- We have closed the amenities but now owners are requesting that they be able to use them. Others want their common expenses reduced. What should we say?
Answer: The amenities were closed in an effort to prevent the spread of COVID-19 and allow the cleaning staff to focus on cleaning and disinfecting high-touch areas. This is consistent with the Corporation’s general statutory obligation to control, manage and administer the common elements and specific statutory obligation to not permit a condition to exist or an activity to be carried out that is likely to cause injury to an individual. Until the public health and governmental authorities advise that state of emergency has been lifted and social distancing is not required, the Corporation is legally justified in not opening the amenities notwithstanding requests from unit owners to do so. There is no basis to reduce owners’ common expenses due to the closure of amenities.
Webinar on March 25th at 5:00 pm is Episode 2 of the Condo Crisis Prevention Cell Group.
- Quarantine rules: Can corporation enforce it and to what extent?
- Access to the building and to units: move in/out; deliveries, in suite renos…
- What to do with short-term rentals and guests suites?
- Collecting fees, special assessments and liens
- Auditor and budgets during the crisis