A question we often get from our readers is whether a particular condo rule is valid. Naturally, we can’t answer specific questions without a thorough review of the rule in question but this post may help demystify what condo rules are about and how they are adopted. This post will also address two very common misconceptions: that rules are imposed by the board and that rules are not as enforceable as the declaration or the by-laws.
Why do we have condo rules?
Condo living brings many benefits. They present owners with less maintenance obligations, access to amenities, enhance security, economy of scale and (at least often) an enhanced sense of community. The trade off is having less living space, increased density, less privacy and the risk of increased nuisance and disruption from neighbours. After all, living on a postage stamp can feel pretty crowded.
A corporation can reduce the irritants that come with living in close proximity by adopting rules to regulate certain behaviors. As much as we might hate to abide by rules, having these rules in place is helpful to ensure a more peaceful and easy cohabitation.
There are as many sets of rules as there are corporations out there. Think of the rules preventing undue noise/disruption, prohibiting unsightly installations; ensuring cleanliness and sanitary conditions or enhancing security. But what about the rule requiring owners to have neutral or off-white draperies or the rule regulating the number and size of pets, or the rule preventing BBQing on the balcony….? Are all of these rules legit?
The validity of a rule turns on two requirements:
- It must meet substantive requirements (what the rule is about); and,
- It must meet procedural requirements (how the rule is adopted).
Substantive requirements: What can condo rules be about?
Rules can’t be about everything and anything. As will be set out below, for a rule to be valid, it must comply with section 58 of the Condo Act. What does this mean?
Firstly, the rule must be related to the use of units, common elements or assets of the corporation. Moreover, the rule must be:
- aimed at promoting the safety, security or welfare of owners and of the property; OR
- aimed at preventing unreasonable interference with the use and enjoyment of the units, the common elements or the assets.
From the outset, we see that the rule can regulate the use of both the unit or the common elements. So, yes, the corporation can control (to some extent) what you can do in your unit.
The rule must also be reasonable and consistent with the Act, the declaration and the by-laws of the corporation. In fact, if a rule is inconsistent with a provision of the Condo Act, the Act shall prevail and the rule will be deemed to be amended accordingly.
Procedural requirements: How are condo rules adopted?
For rule to be valid, it must be adopted following a strict process. This is the procedural requirement.
1. The rule is adopted by the board
The most common method for a rule to come to be is as a result of an initiative by the board. Indeed, an elected board of directors can make, amend or repeal a rule. This must be done at a duly called board meeting.
2. The rule is circulated to owners
Once the rule is voted in by the board, it must then be circulated to the owners for a period of at least 30 days. This is done by sending a copy of the proposed rule to all owners at their address of service maintained in the records of the corporation.
The package to the owners must contain at least:
- a copy of the proposed rule (or proposed change to the rule);
- an indication of when the board proposes the rule will become effective;
- a confirmation that owners comprised of at least 15% of the registered owners have the right to requisition a meeting to submit the rule to a vote;
- a copy of section 46 of the Act.
This “consultation” period must last a minimum of 30 days.
3. When does the rule become effective?
The date of effectiveness of the rule depends on whether owners requisition a meeting to vote on it or not.
If owners don’t requisition a meeting
If the board does not receive a requisition for a meeting of owners within 30 days after the board has circulated the new rule, then the rule becomes effective at the end of the 30 days or at a later date set by the board (and indicated by the notice to owners).
If owners requisition a meeting
If owners requisition a meeting of owners within 30 days of the circulation of the rule, the board must call and hold a meeting within 35 days following the receipt of the requisition. The rule will become effective if:
- either no quorum is reached at the meeting of owners; or
- if, having reached quorum at the meeting, the rule is not defeated by the majority of the owners participating at said meeting of owners.
It is to be noted that if the proposed rule substantially has the same purpose or effect as a rule that the owners have amended or repealed in the prior two years, the board cannot limit itself to circulating the rule and wait to see if a requisition is made. The rule must in fact be approved by the owners at a duly called meeting of owners.
Owners can also propose a rule
While the most common method for a rule to come to be is after having been voted in and circulated by the board, it is to be noted that owners can requisition a meeting to vote on a rule of their own (or to vote to amend or repeal a rule) even if it does not emanate from the board. Such a requisition must be supported by at least 15% of the registered owners. Assuming quorum is reached, the rule proposed by owners will be adopted if a majority of the owners participating to such a meeting does not defeat it.
Is a rule enforceable?
We often hear the suggestion that it is preferable to pass a by-law or to enshrine a regulation in the declaration. Indeed, there is this commonly held belief that rules are less enforceable than by-laws or than the declaration. This is not true.
Provided that the rule meets the substantive and procedural requirements set out above, the rule is as enforceable as the Act, the declaration or the by-laws. On this, paragraph 58(10) of the Act specifically provides that the rules may be enforced in the same manner as the by-laws. Similarly, paragraph 119(2) provides that a corporation, the directors, the owners and the occupiers have a duty to comply with the Act, the declaration, the by-laws and the rules. Along the same lines, paragraph 17(3) of the Act expressly provides that the corporation has a duty to take all reasonable steps to ensure that the owners and occupiers of units comply with the Act, the declaration, the by-laws and the rules.
All this to say that valid rules are as enforceable as the declaration or the by-laws.
What is the best rule to adopt?
As indicated above, rules are often initially proposed by the board. But they are always ultimately the decision of owners – if 15% of them requisition a meeting to submit it to a vote. Then, at least 50% of the owners participating to the meeting can vote it down.
That leads to the inescapable conclusion that the best rule for a condo corp is one which is supported by owners. This is no less true (and in fact is even truer) when considering a rule to regulate smoking or cannabis. Ask us about our arms-length, confidential online survey. This may be the best tool out there to ensure you strike the right balance between collective needs and individual desires.