It is anticipated that, at some point, a condominium
corporation's Board of Directors will be faced with a legal challenge. The
Board's duty is to work as a team to ensure that their condominium corporation
is run smoothly and is maintained to the highest possible standards. One of
their main tools to ensure compliance and participation by all owners in the
corporation is with the implementation of bylaws which, every condominium
corporation in Albert must have. These bylaws outline many important issues
such as defining common areas, pet restrictions, noise restrictions, use of
common area, etc.
Individuals purchasing a condominium are also buying into the
corporation and should understand that they are entering into an agreement with
the corporation to abide by the bylaws. Condominium corporations have the legal
right, and moreover a duty, to pursue infractions of the bylaws, including
issuing fines and pursuing legal action against those who refuse to comply or
are repeat offenders.
In general, upon a violation of a bylaw, the owner of the
unit will receive notice from the Board explaining the infraction, detailing
the actions they need to take to rectify the situation and a time-line within
which they are expected to comply. Often, an owner may not know that a
particular bylaw exists and this type of notice serves as a friendly, but stern
reminder. In cases where an owner does not comply or has repeatedly offended,
the Board may be faced with the decision whether or not to hire legal
representation to further pursue the owner.
This decision should not be taken lightly by the Board. They
should understand the ramifications that this type of action could have on the
condominium corporation, including: high legal costs, public scrutiny, and
possibly the loss of the legal battle.
In a recent decision
made by the Court of Queen's Bench of Alberta (Condominium
Corporation No. 042 5636 v. Chevillard, 2012 ABQB 131), the judge ruled against
a condominium corporation trying to recoup both the fines that were imposed on
an owner who violated the condominium's pet bylaws on multiple occasions and
the legal expenses that were accrued throughout the process.
Regarding the collection of
fines imposed by the corporation, the judge cited that the evidence brought
forward was unsupported due to the fact that there was no evidence proving the
bylaws in place were ever established through the correct process (a
resolution), making them non-binding. The judge stated that the owner had
rectified the situation and that the condominium corporation had failed to
verify that the issue was still ongoing at the time the motion was brought to
the court. Furthermore, the judge ruled that there was no basis for the
corporation to collect such fines from the defendant and therefore the legal
costs could not be recouped from the defendant.
When pursuing issues
legally, the Board should have confidence in their property management company
that they will provide sound advice and will direct them to legal council that
is capable of understanding the Alberta Condominium Act and the corporation's
bylaws to ensure there is in fact a legal case to pursue. The above mentioned
case could have been avoided with some more due diligence and better guidance
from the property management company, and even more so, by a competent lawyer.
