In many ways, condos are a microcosm of our society at large. In the context of the COVID-19 pandemic, many of us have seen this firsthand, with each condo navigating the restrictions and risks associated with COVID-19 in their own community.
Condo Meetings 2.0
Some significant and rapid technological advancements are changing the way condos are operating. Boards who previously never would have dreamed of virtual board meetings are—with the occasional microphone feedback, “Zoom mullets” (business on the top, party on the bottom) and awkward camera angles – embracing the opportunity to transact business virtually.
The Condominium Act, which contemplates electronic voting, board meetings by teleconference and electronic delivery of notices to owners was nevertheless inadequate to meet the needs of condos during the pandemic. Additional flexibility needed to be added as emergency legislation to ensure boards were able to govern in accordance with the requirements of the Act – permitting owner’s meetings virtually without a by-law, permitting notices to be sent electronically without the consent of owners and permitting boards additional time within which to hold their AGM.
Fully virtual condo owners’ meetings were unheard of just several months ago. Now, various platforms have emerged offering fairly seamless and commendable alternatives to in-person meetings, enabling owner participation, communication and transparency in owners’ meetings.
Many corporations are taking the opportunity now—while virtual meetings are permissible without a bylaw—to pass a bylaw to permit virtual meetings after the pandemic. While most will likely revert to in-person owners’ meetings when it is safe to do so, the future for many condos may be a hybrid meeting – offering both an in-person and virtual option. Those owners who are unable to physically attend the meeting would be able to log-in, participate and vote from the convenience of their living rooms.
The goal is not to replace the in-person meetings and the sense of community and transparency that is associated with those; but to replicate those crucial components online, while increasing owner participation by expanding the ways owners are able to participate and vote.
While some condos were utilizing technology wherever possible, COVID-19 has undoubtedly fast-tracked this transformation.
Common Element Use and Restrictions
Under the Occupier’s Liability Act, corporations are deemed to be the occupier of the common elements. This means a corporation has an obligation to keep the property reasonably safe for residents, guests and service providers. The Act requires corporations to manage the common elements and to prevent dangerous conditions on the property.
In the context of COVID-19, we have rightfully seen a significant shift in how a corporation manages its common elements and protects people on the property.
Each community is unique—and so too are the processes, protocols and restrictions that corporations have put in place to protect their communities, including deliveries, garbage disposal, in-suite renovations and real estate showings.
Heeding the advice of public health authorities, most common element spaces have been substantially closed to mitigate the spread of COVID-19 and protocols have been established to minimize common element traffic. As the economy slowly starts to reopen, the weather improves and people return to work, more requests (and regrettably, demands) will continue to roll in from owners to reopen the amenities and ease the protocols.
For the time being, and unless/until a vaccine is developed, the risks associated with COVID-19 remain – and so too do the risks of contracting COVID-19 within the common elements, especially amenity areas such as gyms.
During the transition back to reopening these areas and easing protocols, corporations should plan and carefully consider how to do so safely. For a corporation to discharge its obligations to ensure the property is safe, it will not be enough to simply reopen, rely on residents to follow appropriate use guidelines and to use the spaces at their own risk. Corporations will need to be able to dedicate sufficient resources, such as cleaning staff, to regularly clean and disinfect the areas and ensure compliance by residents with guidelines by the public health authorities. For some corporations, this may have financial implications as well, requiring an increase of the budget.
Remember: just because one can, does not mean that one should, and importantly, does not mean that a failure to exercise reasonable precautions would not attract liability.
For now – and for the foreseeable future at least – increased numbers of people will be working from home, creating unique challenges for condos. Noise and other nuisance issues, increased utility consumption and costs and increased deliveries are just the tip of the iceberg.
In particular, with respect to noise, while residents have never been entitled to absolute silence in their units, the threshold for what is excessive or unreasonable noise may actually be higher than it was pre-pandemic. Corporations should consider this when dealing with noise complaints. While enforcement of the governing documents is necessary, consider engaging in more communication (with the noise-maker and the complainant) and initial efforts to mediate and de-escalate the dispute where possible.
As we all navigate the circumstances brought on by COVID-19, continue to plan, adapt and keep your communities safe.
Josh is a condo lawyer at Lash Condo Law whose experience spans all things condo-related. He is actively involved in the condo industry and is a frequent speaker at industry conferences and seminars. As the past president of his condo corporation in downtown Toronto, Josh learned first-hand about being a director – and gained valuable insight into what directors want from their lawyers.