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SVR Lawyers Magnum York Bylaw Webinar

Magnum York recently hosted our most attended Zoom webinar with SVR Lawyers to discuss what should be in your Condominium Association bylaws, how to enforce them and how to change them, effectively. Our panelists included Kate Kozowyk – Partner, John McDougall – Counsel, and Kendra Barlow – Student-at-Law from SVR Lawyers.

Kate Kozowyk - Partner SVR Lawyers
Kate Kozowyk, Partner
John McDougall - SVR Lawyers
John McDougall, Counsel
Kendra Barlow, Student-at-Law

Who Are SVR Lawyers?

Since 1986, Scott Venturo Rudakoff LLP (SVR Lawyers) have been helping insurers, businesses, and Condominium Associations resolve their most important and complex legal challenges. With their team of highly skilled and determined lawyers, they provide their clients with the very best legal representation through responsive, thorough, practical, and innovative legal solutions and advocacy.

Kate Kozowyk leads our presentation on bylaws and comes with 10 years of experience in condo law. Kate acts for individuals, Board of directors, property managers, and developers with respect to various condominium matters including insurance claims, bylaw creation and interpretation, bylaw enforcement, and condominium disputes.

John McDougall was available at the end of the presentation to answer questions from attendees. John regularly acts for condominium corporations and property management companies on condominium by-law enforcement, condominium fee arrears collection, eviction of tenant and unit owners, by-law amendment, and construction deficiency litigation. He also chairs numerous annual and extraordinary general meetings for condominium corporations.

What are Condominium Bylaws?

Condominium Bylaws are a “social contract” that binds all owners when they purchase their unit within a condominium association. They are an important document to have as an owner and a Board member as they govern procedure, governance, and expectations/requirements of the complex.

According to section 32 (1) of the Condominium Property Act:

“The bylaws shall regulate the corporation and provide for the control, management and administration of the units, the real and personal property of the corporation, the common property and managed property.”

Provice of Alberta – Condominium Property Act

All owners and board members are bound by the bylaws as soon as they take possession of a unit. All condominium associations have their own unique set of bylaws. When an association does not create bylaws specifically for their condominium, the default is the statutory bylaws in the Condominium Property Regulations (section 33 of the Condominium Property Act). These regulation bylaws are generic and are not ideal as they are not tailored to your specific complex.

Condominium Bylaws cannot conflict with the Act (or Regulations) or the Condominium Plan. Section 34.1 (1) states:

If there is a conflict between a bylaw and this Act or the regulations, this Act of the regulations, as the case may be, prevail.

Provice of Alberta – Condominium Property Act

What are Condominium Rules?

Rules and policies can be created at the Board level (passed by way of Board resolution) to assist in the governance of the Condominium Association. Since these are not bylaws, they cannot be enforced by the way of monetary sanctions/fines.

Section 32.1 (1) of the Condominium Propert Act states:

(2) The rules must be reasonable and consistent with this Act, the regulations and the Bylaws.
(3) The rules must not restrict the uses of units
(4) Subject to the regulations, the board must inform owners and tenants of any rules made, amended or relealed.

Provice of Alberta – Condominium Property Act

When a rule is passed at the Board level, the rule/policy does not come into force until:

  1. At least 30 days of written notice has been provided (section 74.6(1) of the Regulation).
  2. Written notice is valid when it’s been delivered to each occupied unit or posted in an open and conspicuous common area; and
  3. Written notice must also be provided to all owners who do not reside in the complex.

A rule/ policy can only come into immediate effect if it addresses a safety concern or an emergency. It will cease to apply when the safety concern or emergency no longer exists. The condominium association must keep a consolidated list of all rules and policies in force and provide such a list to an owner upon request.

How do you change Condominium Bylaws?

Bylaws can only be amended, repealed, or replaced by the passing of a special resolution.

SVR Lawyers – How to change Condominium Bylaws

How are Bylaws enforced?

Condominium Associations (through their Board of directors) have a duty under the Condominium Property Act to enforce the Bylaws of the Corporation. It is essential that Bylaws are enforced consistently. Process for enforcement is governed by the legislation, for example, you cannot issue monetary sanctions if your Bylaws do not allow for it.

Brief steps for Bylaw violations:

  1. Issue a warning letter to the owner. This can also be called “notice of proposed sanction”.
  2. Allow time for the warning letter to elapse (must be provided at least 3 business days for the offending occupant to provide a written response to the warning letter or to remedy the violation).
  3. Once the deadline has passed and if the bylaw violation remains, then a sanction may be imposed.
  4. The maximum sanction for the first instance is $500 (or a lower amount if outlined in Bylaws) and for subsequent violations is $1,000 (or a lower amount if outlined in Bylaws). It’s important to be reasonable as some violations will not warrant a $500+ sanction.

Top 10 reasons to update your Bylaws

  • Keeping up to date with legislative changes
    Since 2014, there have been approximately 50 amendments to the Condominium Property Act and regulations. If your current Bylaws conflict with the new legislation, that particular section that conflicts will be null and void however, the remainder of the Bylaws will still be in effect.

  • Language Updates
    Dated language should be removed from condominium Bylaws. For example, reference to unanimous resolutions and extraordinary general meetings should be removed from the Bylaws as these do not exist under the current legislation. Language should be kept up to date with case law changes as well.

  • Language Updates
    Dated language should be removed from condominium Bylaws. For example, reference to unanimous resolutions and extraordinary general meetings should be removed from the Bylaws as these do not exist under the current legislation. Language should be kept up to date with case law changes as well.

  • Cannabis
    While Cannabis is legal in Canada (since 2018), the use of cannabis may be restricted in condominium associations. Any cannabis restrictions should be clearly set out in the condominium bylaws.

  • Airbnb and short-term rentals Most condominiums do not like short-term rentals of units for security and “wear and tear” reasons. Short-term renters who occupy a space where no lease is entered into are akin to hotel guests who occupy a unit as licensees in exchange for consideration. Condominiums are permitted to control and prevent such licensees, however, to do so the Bylaws must be tailored to address this.
  • Pets
    Even in pet-friendly complexes, the Bylaws should include the mention of pets and ideally be drafted so that the Board can approve and withdraw that approval.

  • Electronic Meetings & Voting
    Due to the COVID-19 pandemic, the requirement for specific organizations to hold in-person meetings was suspended until August 2020. Many associations voiced their desire to continue to hold virtual meetings but found their bylaws did not allow it. Bill 53, the Service Alberta Statutes (Virtual Meetings) Amendment Act allows condo associations the option to meet and vote online, as opposed to in person.

  • Plan and Bylaws Conflict
    Sometimes the Condominium Plan and the Bylaws contain conflicting elements that must be resolved. For example; some condo plans state that exterior windows and doors are part of the common property and therefore the responsibility of the condo association to maintain, while the Bylaws say it is part of the unit and the owner’s responsibility.

  • Rules and Policies
    Under the new legislation, owners cannot be fined for breaches of a rule or policy. Associations should consider moving rules or policies into their Bylaws to preserve their enforcement powers.

  • Costs, contributions, and other case law updates
    It’s important to keep Bylaws updated with case law changes. An example of a change is the ability of the Board to recover their legal costs from the offending owner can be included in the Bylaws but specific wording is important to maximize the Association’s recovery.

Top 8 Questions & Answers with John McDougall

  1. Q: If the Bylaws do not state a specific amount for fines, can the Board still issue fines to owners?
    A: Most bylaws do not have a list of specific fine amounts. The Board is entitled to decide the fine amount as long as it fits within the parameters of the Bylaws and the Condominium Act.

  2. Q: If there is a move-in and move-out fee, is this legal if it is not in the Bylaws?
    A: The Bylaws do allow leeway with respect to policies. As long as the policy is well documented and it’s been provided to all owners in advance then it would be legal to charge a move-in and move-out fee.

  3. Q: Why is there a charge to obtain Condominium documents?
    A: The Condominium act allows for a charge. More details can be found here: Condominium Documents.

  4. Q: Since negligence has been removed for assessing insurance deductibles, what is the basis for determining how these items are assessed?
    A: The language previously used was called the “negligence standard”. This allowed for the deductible to be charged back if it was an act or omission of negligence. However, this left a grey area for damage that was not caused by negligence. The language changed that if the loss originated within the unit, the owner would be responsible for the cost. This allows for the condo association to collect the insurance deductible from the unit owner, up to $50,000.

  5. Q: How does someone join the Board of Directors?
    A: Attend your condo association’s Annual General Meeting (AGM). The Board will resign at the AGM and allow for owners to volunteer to be on the Board. There will then be a vote amongst the owners and then the Board will be determined. Another way would be if there is a current member resigning or vacating their position during their term. The Board would then be entitled to fill the position with someone they appoint.

  6. Q: What is the role of the Condo Association’s property manager in guiding the Board of Directors?
    A: The property manager is an agent of the condominium. They are contracted to recommend and provide opinions to the Board, who then makes a decision and the property manager affects those decisions.

  7. Q: How often should you change Condo Bylaws?
    A: Approximately every 5 – 10 years, depending on what changes have occurred with legislation.

  8. Q: How much does SVR Lawyers charge to complete Bylaw updates and revisions?
    A: It depends on the state of the current bylaws but generally it is a $2,500 flat fee for the first draft. Included in this is a one hour consultation with the Board (before or after the first draft). After this, there is an hourly fee for any further steps. In most straight forwarded cases, it will be around $5,000 but depends on each condo association.

Further Resources:

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