THE LAW
Owner needs reasonable notice for suite entry
March 8, 2008
Gerry Hyman
SPECIAL TO THE STAR
Q: The superintendent in the condo where I am a director visited an owner's suite at her request to investigate the sound of water escaping, apparently from a steam line. The superintendent advised that a valve probably should be replaced and that he would have to come back with the heating contractor. The following day the superintendent and the contractor entered the suite in the absence of the owner and discovered that water was escaping onto the floor. The problem was solved by replacement of a valve. When the unit owner was advised that a master key was used for entry to the suite she became angry that entry was made without her permission. Doesn't management have the right to enter a unit without consent in an emergency?
A: The condominium corporation, or someone it authorizes, has the right to enter a unit or exclusive use common elements to perform the objects or duties of the corporation, but only upon reasonable notice and at a reasonable time. If immediate entry is necessary in an emergency and there is no time to locate the owner, entry may be made. In this case, the initial visit did not indicate an emergency and the contractor was not brought to the unit until the following day. Even if the water escape was serious enough to constitute an emergency, it was not discovered until after entry was made. No effort was made to contact the owner and she had every right to object to the improper entry.
Q: Is a condominium corporation required to comply with common law as well as with legislation such as the Condominium Act?
A: Common law is the law established by court decisions. Until overturned by a subsequent decision or by legislation, it is binding on everyone, including condominium corporations.
Q: It is my understanding that while bylaws are enforceable by the corporation, rules are not. Is that correct?
A: No. A valid rule is enforceable. In order to be valid, a rule must be reasonable and consistent with the Condominium Act, the declaration and bylaws. It must also promote the safety, security or welfare of the owners, or the property, or prevent unreasonable interference with the use and enjoyment of the common elements or units.
Q: Our property manager resigned immediately after our annual meeting. Except for a few old files, he has failed to turn over the condominium records to the board or to our new property manager and won't meet with us or answer our calls. We are unable to prepare a budget and don't know what the situation is with owners whose common expense payments are in arrears. We discovered that we have no snow-removal contract. What can we do?
A: The former property manager should be advised that all of the records belong to the condo corporation and that his refusal to return them will result in losses to the corporation for which he will be held responsible. It would be advisable for the board to instruct the corporation's lawyer to write to the former manager setting a deadline and to immediately commence a court action if the deadline is not met. The manager's resignation without notice, and his refusal to return condominium property, may have both contravened the management agreement.
Q: Is a director's yearly honorarium considered remuneration requiring approval by bylaw?
A: Yes.
Email: gerryhyman@bellnet.ca
Lawyer Gerry Hyman is an expert in condominium law who appears in Condos on Saturdays
Toronto Star