The pandemic has, undeniably, had a significant impact on condominium life. To say the past few months have been a transition for condo corporations and their residents, and an effort for boards and managers, would be an understatement. From implementing virtual meeting and electronic voting procedures, to finding the safest way to gradually reopen temporarily closed amenities, the list of impacts seems endless.
As areas of the province have reopened in the midst of an ongoing outbreak, condos may be asking if a specific set of rules, applicable during this sort of health crisis, is helpful.
Since the board already has the authority to make decisions during a health crisis, such rules aren’t legally necessary. This authority flows from Sections 17 and 26 of Ontario’s Condominium Act which state: the board is responsible to fulfill the obligations of the condominium corporation. A condominium corporation “has a duty to control, manage and administer the common elements and the assets of the corporation” (per Section 17). A condominium corporation is
also responsible, as occupier, to keep the common elements reasonably safe (per Section 26).
These sections, read together, give the board the authority and responsibility to decide how the common elements are to be used during a health crisis. For instance, it is up to the board to decide how to keep the common elements safe and, more generally, how the common elements are to be used and managed so as to comply with directives from public health officials.
A condo board can take steps without the need for any rule to authorize such, and could certainly decide to publish one or more policies detailing their decisions—mainly as a means to inform owners and occupants and to hopefully persuade them to cooperate.
However, from a purely legal perspective, the owners and occupants are obligated to follow the board’s instructions in relation to use of the common elements during a health crisis. Again, this flows from provisions of the Condominium Act.
Are Pandemic Rules a Good Idea?
For some condominiums, the answer to this question may be yes. Rules (like policies) can be an excellent way to record the board’s directives and an effective way to inform owners about these directives; for instance, restrictions or directions on the use of the common elements during a health crisis.
In some situations, rules may help with enforcement. All owners understand that rules have the “weight of the law” and can be enforced pursuant to provisions of the Condominium Act.
Passing a rule may help persuade owners that compliance is required by law and that non-compliance can have real legal consequences.
Rules can contain additional details about the consequences of non-compliance, such as the possibility that the corporation may refuse access to the common elements (or to parts of the common elements) to occupants and/or their invitees who don’t comply. Again, this may also help owners and occupants to better understand the potential consequences of non-compliance.
Some condos may like the added “enforcement momentum” of rules that embody the board’s decisions, but there is a potential drawback. The rule-making process requires the involvement of the owners who have the right to challenge any proposed rule at an owners’ meeting, which means that the board’s right to impose the particular directive under the terms of the Condominium Act could very possibly be defeated. In other words, if a board decides to pass a rule (rather than a policy), the board is risking the possibility that owners may vote it down, thereby preventing the board from fulfilling its mandates in relation to safety and management of the common elements.
The bottom line is that a policy, or simply a board directive, may be the better way to go if the board is not prepared to risk a “no” vote from the owners. A proposed rule can make sense when the board considers it to be truly optional, so that a “no” vote would be acceptable and would not prevent the board from doing what it feels is necessary to keep common elements safe.
Possible Pandemic Rules
1. A rule to define a “health crisis” or “pandemic” and to say that the “pandemic rules” will apply during any such health crisis or pandemic.
2. A rule stating that, during a health crisis or pandemic, the board may issue one or more directives stating that:
● Certain indoor or outdoor amenities are not open for use, or are open for use subject to certain restrictions or conditions.
● Certain procedures or protocols must be followed on the common elements in order to maintain physical distancing among all persons. Without limiting the generality of the foregoing, the board may require that elevators or other areas of the common elements be used only by a limited number of users at a given time.
● Users of certain areas of the common elements must thoroughly wash their hands with hand sanitizer (available at stations installed by the condominium corporation) before entering those areas.
● Users of certain areas of the common elements must wear face masks and/or face shields, meeting specifications established by the board, while in those areas. The directive may include exceptions for persons who cannot safely wear a face mask.
● Deliveries of parcels, packages and other items to the building are permitted only in strict compliance with protocols to be established and posted by the board.
● The board may place limits or restrictions upon persons (including contractors and other invitees of occupants) who can enter onto the common elements. Without limiting the generality of the foregoing, the board may prohibit such persons from entering onto the common elements at any time or times.
● The board may establish other procedures and protocols for use of the common elements as they deem appropriate, in order to maintain safety on the common elements or to otherwise fulfill the obligations of the condo corporation in relation to the common elements.
● The board will post notices and/or signs setting out the directives described in this rule.
3. A rule stating that the board will take reasonable steps to enforce all of the requirements of pandemic rules. Without limiting the generality of the foregoing, the board may prohibit anyone from entering or remaining on the common elements if he or she is not in full compliance with any of the board’s directives described in the pandemic rules. Furthermore, if any person is not in compliance with the board’s directives, that non-compliance will constitute a trespass for purposes of Ontario’s Trespass to Property Act, entitling the condo corporation to pursue all remedies under the Trespass to Property Act as against that trespasser.
James Davidson and Nancy Houle are partners at DavidsonHouleAllen, Condominium Law
The preceding article was published in the August issue of CondoBusiness