Notice to Owners…Not Just for Meetings: Part 2
In our last post we discussed some of the most common situations where condominiums must provide notice to the owners and others. In this post we discuss more unusual situations and some of the notices that are often missed!
Before we get into notices that must be sent to the owners, did you know that condominiums must send notices of all meetings (not only the AGM) and other communications to the auditor? Subsection 70(2) of the Act states:
The corporation shall give the auditor notice of all meetings of owners and all other communications relating to the meeting that the owners are entitled to receive. (emphasis added).
The auditor should receive copies of the preliminary notice of meeting package and the notice of meeting package for all meetings held during their term as auditor.
Legal Action
Section 23(2) of the Act requires condominiums to give notice to the owners and mortgagees of record prior to commencing all legal actions with respect to damages to the common elements, the assets, or units, including contractual matters. Examples include pursuing declarants and others for construction defects on the property or a breach of contract claim against one of the condominium’s contractors. Failure to give proper notice has traditionally resulted in the action being dismissed, but the courts have taken a more balanced approach in recent years in recognition of the consumer protection purposes of the Act.
There are two notable exceptions to the notice requirement. Condominiums are not required to give notice to the owners before commencing an action to ensure an owner complies with the Act, declaration, by-laws, or rules, including registering a lien against a unit when the owner is in arrears of common expenses or commencing an application to the courts or tribunals against the owner. Notice is also not required for actions commenced in the Small Claims Court, where the monetary jurisdiction is currently limited to $35,000.
Notices from Municipal Authorities & Others
If a condominium receives a notice under the Planning Act, which is common when a neighbouring property is being developed, it must send notice to the owners and mortgagees of record within 15 days of receiving the notice. The condominium must make a copy of the notice available for owners to examine, but many condominiums simply choose to include a copy with its notice.
Similarly, if the condominium receives any document about a proposed expropriation of the common elements under the Expropriations Act, it must send notice to the owners and mortgagees of record within 15 days of receipt of the document. A copy of the document must be made available for examination by the owners and mortgagees of record. Expropriations are quite rare. They tend to occur when a municipality is looking to expand transportation corridors, such as widening roads, creating in a roundabout, or extending a rail or subway line.
Changes Made By Owners to Common Elements
It is important to note that in some circumstances an addition, alteration, or improvement made by an owner to the common elements could require notice to the owners under section 97 of the Act, which requires condominiums to provide notice to the owners before making certain changes. We discussed section 97 of the Act in detail in our last post.
Subsection 98(1)(c) of the Act states that the notice requirements of section 97 of the Act must be met in cases where that section would apply if the proposed change was made by the condominium. There is an exception to the notice requirement for changes made by owners to exclusive use common elements so long as the board is satisfied the proposed change:
- will not have an adverse effect on units owned by other owners;
- will not give rise to any expense to the condominium;
- will not detract from the appearance of buildings on the property;
- will not affect the structural integrity of buildings on the property according to an engineer if there is a proposed change to the structure of buildings; and
- will not contravene the declaration or any prescribed requirements.
There are many other situations where condominiums must give notice to the owners, mortgagees of record, and others. These last two posts do not include an exhaustive list of all situations where notice is required. If in doubt, check with your condominium lawyer for more information about required notices.