CONDO LAW
Board decides who has access
October 24, 2009
Gerry Hyman
SPECIAL TO THE STAR
Q: Our management company takes the position that directors cannot enter those common element areas used for mechanical services. Keys to those areas are locked away and access is available only to trades, management and the superintendent. The directors want to be able to inspect those areas to satisfy themselves that equipment is being maintained. Can management prohibit directors from carrying out the inspections?
A: The Condominium Act provides that the objects of the condominium corporation are to manage the property and that the corporation has a duty to control manage and administer the common elements. The act also provides that the affairs of the corporation will be managed by the board of directors. The role of a management company is not to manage the condominium but to assist the board in doing so by using the management company's expertise and experience to advise the board and to carry out the board's decisions.
Your management company appears to have misconstrued its role. It is the board that should decide who has access to the equipment areas.
Q: A considerable portion of the amount that each owner in our complex contributes to the reserve fund is for future repairs to the common element decks and interlocking brick driveways. Can we eliminate the requirement to contribute to the reserve fund for those items in order to decrease our monthly reserve fund contributions?
A: No. A reserve fund study must include every common element component having a replacement value of not less than $500. Unit owners are required to put aside money as common element deterioration takes place rather than the entire repair cost being borne by those who own the units at the time the repairs are required.
Q: We have two common element amenity rooms that are referred to in the declaration. Our board has decided to convert one of the rooms to a property management office. Can this be done without a vote of the owners? If so, should we not expect a reduction in our maintenance fees?
A: Section 97 of the Condominium Act requires a board to notify owners of a planned common element addition, alteration or improvement estimated to cost more in any month than 1 per cent of the corporation's annual budget. The notice must advise that owners of at least 15 per cent of the units have the right to requisition an owners' meeting to vote on the change. Section 97, however, is not applicable to a change in use of a common element area and notice to the owners would not be required even if the cost of changing the use of the room exceeded 1 per cent of the budget in any month.
The reference in the declaration to the amenity rooms raises another issue. If a declaration amendment is necessary, written approval of 80 per cent of the unit owners is required. A passing reference in the declaration to the amenity rooms likely does not necessitate a declaration amendment as the result of a board decision to change the use of one of the rooms.
On the other hand, if the declaration states that each of the two amenity rooms is to be available as a meeting room for unit residents, a change that eliminates that use would, I believe, require the amendment. The total amount of the owners' maintenance fees is the estimated amount required to operate the corporation in each fiscal year. Unless the amenity room change produces a budget reduction, there will be no reduction in the maintenance fees.
Lawyer Gerry Hyman is an expert in condominium law and appears Saturdays in New in Homes & Condos.
Toronto Star