Principles of Natural Justice and Enforcement Flashcards
The board must also follow certain restrictions in enacting rules, including that:
- Rules must be reasonable
- Rules must not restrict the uses of units
- If a rule is inconsistent with the Act, the Regulation or the bylaws, the Act, Regulation or bylaw will prevail.
- If a rule is inconsistent with an ordinary or special resolution of the owners, the ordinary or special resolution will prevail.
Rules are considered to be a document that must be disclosed to an owner within 10 days of request. They should also be disclosed to potential purchasers who are looking to review condominium documents.
What are the two different types of rules?
General Rules
Emergency Rules
How must general rules come into effect?
Generally, a new rule does not come into effect until the corporation has provided at least 30 days’ written notice of the new rule to every owner and occupant in the project as follows:
- Serving every owner who does not reside on the parcel with a copy of the rule (by mail to their address or by email if they have consented to receive documents by email); and
- Serving every other owner and occupant in the condominium by delivering a hard copy of the new rules to each occupied unit in the condominium OR by posting the new rules in an “open and conspicuous” common area to which all occupants have access (i.e., an elevator, lobby, or notice board).
What are the options for enforcement penalties:
- Written notice of a bylaw infraction that outlines expected behaviour
- Monetary fine (note that monetary fines cannot be issued for a breach of a rule)
- Non-monetary sanction (i.e., restricting access to common amenities)
- Interest on unpaid monetary fines
- Court action to enforce the payment of a fine or assess damages
- Eviction (mostly tenants but an owner can be evicted in extreme cases)
- Foreclosure (owner; however this remedy is only available for unpaid contributions)
Progressive enforcement means that boards should first encourage voluntary compliance with the CPA and bylaws. However, should such noncompliance recur, the enforcement efforts would escalate in progressive steps:
- Preliminary proposed sanction letter with time to respond.
- Notce of sanction letter
- Potential class-action depending on circumstance.
The policy should specify the following:
Does the policy apply to owners, tenants, and guests?
- To whom should contravention of the bylaws/Act be reported? How should this be done (in writing, etc.)?
- How should the board document the complaint? How long are the complaints retained?
- Who is responsible for investigating the complaint? How is the investigation documented?
- What steps shall be taken if a complaint is substantiated?
- What fines will be issued for which offences? Will fines increase over time if the person continues to engage in the offence?
To ensure owners and occupants are aware of all bylaws and rules, the following may be helpful:
- Create an owner handbook that generally outlines major bylaws and rules that must be followed and provide it to all new occupants.
- Ensure new tenants are provided with copies of the bylaws and rules, and have signed off on a tenant form that they have received a copy of these bylaws and rules.
- Consolidate all applicable rules and policies into a document that is easily accessible to all owners, either via a website or on request to the manager.
- Circulate a monthly newsletter to owners highlighting a different bylaw that is often breached each month.
Residents should be continually reminded how to report contraventions.
What steps can the corporation take in terms of non-payment of condominium fees?
Condominium contributions are given a special status when it comes to collection and enforcement. These fees are tied to the land, not just the owner, and if an owner falls into arrears, the corporation can caveat the unit, and eventually foreclose on the unit if necessary to collect the unpaid fees.
In addition to the amount owing, the condominium is entitled to recover some or all of these costs incurred in collecting the arrears, but there is a limitation on that recovery.
What is the limitation for recovery for contribution fees?
If the recovery is for costs relating to the filing of a caveat under section 42(b) of the CPA, then section 74.1 of the Regulations specifies that the corporation can recover legal and other professional fees and disbursements related to the preparing, registering, and discharging of the caveat. The limitation is that the cost cannot be more than the original amount owing with respect to that unit.
What is the limitation for recovery for assessments due?
If the collection is for assessments due under section 39 of the CPA, then the condominium may collect all reasonable costs, including legal expenses and interest incurred by the condominium.
How must emergency rules come into effect?
The board can omit the 30-day notice requirement in cases where there is a safety concern, a security concern, or an emergency (including in a case of insurable loss); however there are two conditions:
- All occupants, on-site owners, and offside owners must be given notice of the rule before it comes into effect (by posting notice in a conspicuous place and by sending it to offsite owners as outlined above); and
- The emergency rule automatically ceases to exist when the safety concern, security concern, or emergency is over.
What is the step by step process that the Board must follow before servicing a sanction?
- Notice of Proposed Sanction
2. Notice of Sanction
what’s covered in the notice of PROPOSED sanction?
he board must serve notice of the sanction on the person who is noncompliant with the bylaw. (Practice Tip: In the case of noncompliant tenants, notice should be sent to both the tenant and the owner as the owner is responsible for their tenants and the owner is in breach of the bylaws if their tenants are in breach). A notice of sanction must contain all of the following information:
- The unit number associated with the failure to comply with a bylaw
The name of the person subject to the proposed sanction, if known
The provision of the bylaw that has not been complied with
-If the sanction is provided for in a bylaw in respect of noncompliance with a rule, the rule that has not been complied with
-The date and time of the noncompliance, if applicable
Other relevant particulars of the failure to comply
- If applicable, the maximum monetary sanction for noncompliance with the bylaw
- A description of corrective or other action, if any, that must be taken in respect of the noncompliance
- The deadline, which must be at least 3 days, excluding holidays, after service of the notification, for taking the required actions or providing a written response to the notification, if any
What’s coevered in the notice of sanction?
- Once the deadline for corrective action or reply has passed, and if the board is not satisfied with the response or corrective action, the board may proceed to impose a sanction by sending a notice of sanction that contains the following information:
- In respect of a monetary sanction, the amount of the sanction and the instructions and the deadline for payment of the sanction
- In respect of a non-monetary sanction, a description of the sanction and the date and time at which it comes into effect
- Reasons for issuing the sanction
- The date of the board resolution approving the sanction
The board’s ability to issue fines is limited by its own bylaws and by the Condominium Property Regulation. Unless there are lower limits set out in the condominium’s bylaws, the following limits apply:
- Fines cannot be more than $500 for a first instance or first week of noncompliance
- Fines cannot be more than $1000 for a second and subsequent instance of noncompliance
If an offence is a continuing offence (i.e., someone is keeping a dog in their unit, but no dogs are allowed), the maximum fine is $500 for the first week of noncompliance and $1000 for any subsequent weeks.
