“Thou shalt not” is a confrontational approach that is contrary to achieving harmonious use of common elements, however the line in the sand is just that to preserve the rights of all owners.
An owner recently asked me for a “peace treaty” as if a breach of the Condominium Act and an attempt by management or the Board to gain compliance was an act of war. Really, it’s never war, and instead community rights preservation and resolution focused – in performance of duty. Let’s explore that.
Savvy property managers develop creative communication styles through experiences they as relate to “owner management.” The essential elements of setting a proper platform for enforcement need to be present when an owner’s use of the common elements breaches the governing documents of the condominium Corporation or Board policies. Tone is key to resolution alongside education and information sharing as the basis for an initial contact with an owner in breach.
Owners should expect to receive a first notice from the property manager as agent for the condominium Corporation to explain the 5 W’s (see below). Some managers will phone for a dialogue or offer a virtual meeting then issue a first notice citing the verbal communication, or attempt to reach out, as a means to understand perspectives. Attempting to ensure the breach took place is a good measure so source is important to assess before actng.
Who is in breach (owner, guest, trade, tenant)
What is the breach (parking in fire lane, propping open suite door, etc.)
Why is it a breach (Act states “xxx” Declaration states “xxx” or Rule 17 states “xxx”)
Where on common elements (fire route at lobby, unit door to suite 2904, etc.)
When was the breach (date, time or time frame, etc.)
How is it a breach (great opportunity to explain impact to fellow owners such as parking in the fire lane at any time poses a safety risk to the community as emergency vehicles need immediate unfettered access)
Management service agreements require the property manager to enforce; and this detail is often misunderstood. It is helpful to appreciate that the manager is performing their role and not seeking a confrontation but instead seeking to close a report or complaint peacefully. Escalation to the Board with a recommendation for other measures and perhaps legal action is not the goal of the manager. Phraseology in many management contracts reads similar to:
“Enforcement of Corporate Documents”
Take action within its (managers) powers (short of legal proceedings) to enforce the Act and the Corporation’s Declaration (and any agreements), By-Laws, Rules and Reciprocal Agreements (if any), understanding instructions obtained by the Manager from the Board or, if these instructions are inadequate in any particular situation, under directions sought by the Manager from the President of the Corporation or, in the latter’s absence, the next officer in seniority. When directed to do so by the Board, the Manager shall initiate, at the expense of the Corporation, legal enforcement proceedings through the Corporation’s solicitor. The Manager shall advise the Board of any breach and any actions taken to rectify the same.”
Often the common elements usage breach is resolved after the first notice, thereby closing the matter. When a breach reoccurs the documentation process escalates to include more gathering of evidence and a second notice of breach usually follows. Many condominium Boards have a policy or protocol as to how breaches are addressed and often property management service firms adhere to a pattern with form letters and consistent approaches that serve well if a breach continues. The property manager should ensure the notice(s) was (were) both received by the correct party and understood. While email is the primary form of communication, charging off to compliance measures without verification of delivery to the unit owner can be disastrous in terms of legal costs.
“Thank you for your time, attention and understanding of the intricacies of condominium living plus your partnership in your community” lands far better than a ‘thou shalt not’ tone amidst the controls that society is increasingly unhappy with. Start out the way you intend to finish.
Debbie Dale & Kirsten Dale, MCRS Property Management
Read the full Condo Buzz, CCI Huronia Fall 2023 Newsletter here.