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Roberto Noce Q.C., Partner of Miller Thomson LLP, joined as our special guest for his second Magnum York hosted webinar to discuss the legal facts of Condominium life and give recent examples of court case studies.
Roberto discussed how by-laws, condominium laws, and Board rules integrate with each other, as well as, broke down some condo law cases where Roberto acted on behalf of the owners. In both cases, the owners were successful in their lawsuits.
Robert Noce’s practice includes municipal law, real estate development, condominium, and corporate/commercial matters. Robert has appeared as legal counsel before municipal councils, boards, and tribunals including the Subdivision and Development Appeal Board and the Municipal Government Board, and all levels of Court in Alberta. With many professional achievements, such as The Best Lawyers in Canada – Municipal Law, 2019-2021, Robert joins as the special guest and highly valued Preferred Vendor of Magnum York to provide our clients with invaluable information regarding condo law.
Roberto’s Q.C. designation stands for Queen’s Counsel. This is an honour granted by the government to lawyers who have demonstrated exemplary service to the Canadian justice system through their work in the federal public service.Government of Canada – Designation of Queen’s Counsel
Thank You to Roberto Noce and those who attended the Zoom webinar
As always, we appreciate Roberto taking time out of his busy schedule to discuss legal aspects of Condominium living and answer questions that Magnum York clients may have. To those who attended the meeting and asked questions, your time is appreciated.
To read about the basics of Condo Law in Alberta, refer to the first webinar recap blog that we hosted with Roberto.
Case Law 1
In 2017, Roberto represented an owner of a condominium in a medium-rise, apartment-style condominium. The Board had issued the owner fines and demand letters, alleging that the owner was not cleaning up after her dog on common property and was in violation of the bylaws.
The condominium corporation started a lawsuit when they felt their demands were being ignored. They sought a court order, preventing the owner from communicating about the Property Manager to other owners. They wanted a court order to remove the dog from the property permanently. The Board was also seeking that the owner’s son be removed from the unit and was seeking judgment in the amount of $5,000 for the fines and penalties issued to the owner.
When Roberto cross-examined the affidavit, signed by the vice president of the board, it became apparent that the Board knew very little about the case. It took the Board one year to respond to all the questions, bringing the case into 2018/2019. In 2020, the corporation tried to send Roberto a cheque for $8,000 to end the lawsuit.
Roberto declined the payment and challenged the corporation’s request to discontinue the claim in court. Ultimately the corporation lost this case and was ordered to pay the owner $40,000 in reimbursement.
Case Law 2
An owner of an apartment-style condo had a window that continuously leaked. The corporation acknowledged that the window needed to be replaced and provided a report by their engineer. The corporation failed to replace it within the timeline as recommended by their engineer, therefore, the window continued to leak and cause water issues within the owner’s unit.
As a result, the Corporation chose to no longer address the owner’s concerns regarding the window. The owner started a lawsuit against the corporation seeking that they replace the window.
After a court hearing, the judge agreed with the owner and ordered that the window be replaced. In addition, the judge showed disappointment in the way the corporation acted towards the owner. The court ordered that the corporation pay the owner $5,000 for pain and suffering as well as for the corporation to pay $37,000 towards the owner’s legal fees, as the board failed to do what they were legally required to do.
“The moral of the story is, don’t make issues personal. Maintain objectivity.“Roberto Noce
Top 4 Questions & Answers
- Q: Our building has a contract with Telus to install fibre optics into each unit. Some units are stacked, which requires fibre to be installed from one suite into another. One owner refuses to provided access, even though it’s required to install fibre into the unit next door. What authority does the Board have to request access?
A: The Board needs to communicate with the owner, so they understand the purpose of needing access. If that fails, the corporation can provide a notice to access and arrange a date and time convenient for the owner. The worst case scenario is that the corporation can get a court order to allow the corporation to gain access to a unit, and the owner would be responsible for the legal fees.
- Q: The Board wishes to investigate two projects. One is EV (electric vehicle) charging for the parkade and the other is installing solar panels. Because these are discretionary projects, does the Board need to do a special resolution to get 75% of the owners to approve these projects?
A: The condominium plan will become helpful whether or not there is a legitimate place to put an EV charging station on common property. A review of the condominium plan will be required. If it can’t be placed anywhere on the plan, it will require an amendment to the plan, which will require a special resolution from the owners. This also applies to solar panels, it would require a special resolution from the owners as it would fall on common property. Common property does not belong to the corporation, it is owned by the owners collectively.
- Q: A renter has recently signed a one year contract. Signs are posted in the building, requiring that residents wear masks in common areas of the property. The new renter’s roommate refuses to wear a mask in the common area, which is causing conflict amongst other residents. What are the rights of the rental tenant, owner and condo board?
A: The bylaws and any rules that the corporation passes, which includes the requirement to wear a mask, applies to tenants, owners and any visitors in the building. It’s recommended that the corporation contact the owner, advising them that their tenant has legal requirements to comply with the rules and bylaws of the corporation as set out by the Condominium Property Act. The corporation can take steps to evict the tenant for failure to comply, in which the owner would be responsible for the costs.
- Q: In a situation where a Condominium with a ‘no pet policy’ has received a request from an owner for an emotional support pet, along with a doctor’s note and a mental health professional note, can the Board refuse the request?
A: There is no one right answer as this becomes a human rights issue. The corporation has certain rights to challenge the doctor’s note, if they want to. Each situation is fact dependant and would require a review of the specific case.
- As a corporation, ensure you get legal advice if you are ever dealing with common property or leasing common property. Some of those actions may require the engagement of the other owners, specifically a special resolution.
- The corporation has powers to borrow funds, as opposed to issuing a special assessment. If you are going down that path, ensure that the owners get a full explanation as to the purpose of the borrowing and what it means to them over and above their monthly condo fees.
- As a Board, you have the responsibility to act under the best interest of the Corporation.
Not Legal Advice: This article is provided solely for information purposes. The information presented does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice. If you are in need of a legal opinion, you should engage a lawyer to review your specific concerns.
- If you missed Roberto Noce’s first webinar with us, we encourage you to visit the recap blog post here: Webinar Recap: Alberta Condo Law 101 For Condo Boards With Roberto Noce
- To sign up for future educational webinars, visit: https://magnumyork.com/webinar/
- Miller Thomson LLP – https://www.millerthomson.com/en/
- MYVendor Preferred Vendor Program: https://magnumyork.com/blog/holly-yuzwa-joins-magnum-york-to-lead-the-myvendor-program/
- The Condominium Property Act: https://www.qp.alberta.ca/documents/Acts/c22.pdf
- The Condominium Property Regulations: https://www.qp.alberta.ca/documents/Regs/2000_168.pdf
- Calgary Herald – Roberto Noce by-weekly segment: https://calgaryherald.com/author/robert-noce
- Edmonton Journal – Roberto Noce by-weekly segment: https://edmontonjournal.com/author/rnoce
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