Notice to Owners…Not Just for Meetings: Part 1
Most people are familiar with the notice of meeting requirements, but did you know the Condominium Act, 1998, requires condominiums to send notices to the owners in other circumstances? In this post we explore some of the most common situations where notice must be sent to unit owners and other parties, like mortgagees of record. In a future post, we will explore some notice requirements that are less common.
Entry to UnitSection 19 of the Act permits condominiums to make entry to a unit or exclusive use common element area to perform the objects and duties of the condominium or exercise its powers at any reasonable time on giving reasonable notice to the owner. There is no prescribed form for the notice. It should describe the proposed date and time of the entry, the purpose, and the persons attending the unit. Ideally, it would give the owner several days notice at a minimum. In emergency situations, it may be necessary to enter a unit or exclusive use common element area with little to no notice, such as a fire or water escape, to
prevent injuries to others or property damage. A condominium’s declaration should be reviewed for additional information about its entry rights.
Changes to the Declaration, By-laws, and Rules
Section 58 of the Act requires condominiums to give notice to the owners when it proposes to create new rules, amend existing ones, or repeal rules. The purpose of the notice is to inform owners of the proposed changes and advise them that they are entitled to requisition a meeting to vote on the rules. Rule changes made without providing owners proper notice will be unenforceable.
Changes to the declaration and by-laws require condominiums to hold a meeting of owners to present the proposed changes (and vote in case of by-laws) so notice of the proposed changes is described in the notice of meeting. There is no separate notice requirement like with rule changes, but some condominiums will include a letter explaining the proposed changes in greater detail.
Changes to Common Elements, Assets or Services
Section 97 of the Act requires condominiums to give notice to the owners when it makes additions, alterations, or improvements to the common elements, changes in the assets of the condominium, or changes in the services provided to owners. There are exceptions to the notice requirement:
- repair work using materials that are reasonably close in quality to the original (s.97(1)),
- the work is required to comply with law or a shared facilities agreement (s.97(2)(a)),
- the board believes it is necessary to ensure the safety or security of persons using the property or prevent imminent damage to the property (s.97(2)(b), or
- the estimated cost in any given month is no more than the greater of $1,000 and 1% of the annual budgeted common expenses (s.97(2)(c)).
Notice to the owners is required in all other situations.
According to section 97(3) of the Act, the notice must describe the proposed change, the estimated cost of the proposed change and the way the condominium intends to pay for it. The notice must also explain that owners have the right to requisition a meeting to vote on the proposal and include copies of section 46 and 97 of the Act.
Collection & Enforcement
When owners fail to satisfy their obligations, condominiums must give them notice before taking certain legal steps or commencing legal action. For example, at least 10 days before registering a lien against an owner’s unit for arrears of common expenses the condominium must send a notice of lien to the owner. Failure to provide this notice to the owner could invalidate the lien. Similarly, the condominium must send notice of the lien to any mortgagee before the lien is registered or the same day it is registered. Failure to send notice to the mortgagee could result in the lien losing priority over the mortgage.Where owners have not complied with the declaration, by-laws, or rules, the first step should be to send them notice. Best case, the notice will result in the owner complying and resolve the matter without further legal action. If further legal action is required, the courts and tribunals will expect the condominium to have attempted to resolve the matter prior to commencing legal action. The failure to
provide notice of the infractions, or reasonable notice that provides sufficient time to comply, could result in the adjudicator ruling in favour of the owner. There could be significant cost consequences for providing inadequate notice as well, such as an order that the condominium pay the owner’s legal costs.