1 minute read
ENFORCING THE GOVERNING DOCUMENTS: WHAT THE CAT EXPECTS
One of the many duties the board of directors of a condominium corporation has is to enforce the condominium’s rules, declaration and bylaws as well as the Condominium Act. Directors are often criticized for either not taking enough action or taking an overly aggressive approach. Sometimes this criticism is directed at the property manager who usually implements enforcement steps in order to carry out the board’s directions.
How can a property manager or board member understand what steps to take when enforcing the governing documents? The starting point is always section 17 of the Condominium Act, which instructs the board (and by default the property manager) to take reasonable steps.
Unfortunately, the Act does not provide any further direction on what is reasonable. Given that most of the enforcement-type issues condominiums are going to deal with will now be dealt with at the CAT if voluntary compliance is not achieved, a review of recent CAT cases provides some insight into what the
BY SONJA HODIS
CAT expects of condominium corporations and property managers when they enforce the rules.
A duty to enforce
In Manna v. York Condominium Corporation No. 62, the CAT made it very clear that the condo corporation has a duty to enforce. Period. As the CAT pointed out, the duty to enforce exists even if the owner is not on good terms with the board. It does not matter if the owner has a bad history with the board or if they may be raising issues appropriately.
As stated by the CAT, the board’s duties under the Act are not erased just because you are dealing with a difficult owner. As such, it is important for boards to separate the request for enforcement from any other issue they may have with an owner. Even a difficult owner has a right under the Act to expect that the board will fulfill their duties to enforce the rules.
The Manna case also provides a good discussion on the difference between situations where the board has some discretion as to whether they enforce a rule or not and cases where there is no discretion.
