New condominium corporations are almost always equipped with adequate accessibility. However, some older condominiums were built before accessibility was a legislative or societal imperative. Often, when a resident with a disability moves into these older condominiums, the corporation must undertake renovations to accommodate the needs of this resident.
What are some considerations that face the condominium corporation in these situations? Of course, one should always consult with counsel for specific advice that takes into account the particular facts of any situation. However, below are some general guidelines on the issue.
Is notice to unit owners required?
The corporation is free to undertake this type of renovation without consultation with or notice to unit owners. The Condominium Act (section 97[a], specifically) permits this type of expenditure when it is necessary to comply with the Ontario Human Rights Code. For example, the Ontario Human Rights Code requires equal treatment with respect to the occupancy of accommodation based on disability. As a result, if a resident requires a ramp to enter a building, the condominium corporation cannot refuse to install that ramp.
How should the renovation be funded?
There is no rule in the legislation or the common law regarding whether a condominium corporation may use the reserve fund to pay for this type of renovation. There are, however, legal and political considerations that should guide a condominium corporation when deciding how to finance the renovation.
Legally speaking, the safest route is to use money from the general operating fund of the condominium corporation to pay for the renovation, via available funds or via special assessment. Section 93(2) of the Condominium Act states that the “reserve fund shall be used solely for the purpose of major repair and replacement of the common elements and assets of the corporation.” Renovations to make the building more accessible do not fit squarely into the definitions of “major repair” or “replacement.”
In the case where a special assessment is required to finance the renovations, proceeding this way may carry some political risk. Levying a special assessment might create a backlash among unit owners, who could requisition a meeting to remove the directors that decided to levy the special assessment, or who could vote those directors out of office at the next election.
If there is no money available in the general operating fund and it if is not politically viable to levy a special assessment, the condominium corporation may consider using money from the reserve fund to pay for the renovations. The risk of a unit owner challenging this decision is quite low. Even in the case that this decision is challenged, it is very unlikely that a court would rule against a condominium corporation that decided to finance the renovations in this way.
Renovations necessary to accommodate residents with disabilities shouldn’t be a cause for woe in condominium corporations. They are an opportunity to build a more inclusive and smoothly functioning community.
These types of renovations don’t only benefit the individual requesting them. Rather, the benefits are manifold. Among the paybacks are that they make it easier for future residents who require accommodation to move in, they make it easier for current residents who have guests who require accommodation to access the building, and they may even make it easier for residents with an armload of groceries or a baby in tow to enter the building. Most importantly, they better the entire community by allowing for diversity. All of this improves the value of the condominium corporation.
Ashley Shaffer is a condominium litigator with Fine & Deo. She exclusive represents condominium boards before courts, tribunals, arbitrators and mediators.