Share that Patio and Pool between Corporations

Condominium Shared Facilities – Top 8 issues

Posted: 25 Jun 2019 06:31 AM PDT

In a previous blog post we wrote about the requirements for shared facility managers to be licenced where one or more of the parties to the shared facility agreement is a condominium corporation.  This is a new requirement recently introduced when the Condominium Management Services Act, 2015 (“CMSA”) came into effect.

This is just one issue that has come up recently concerning shared facilities however, condominium corporations continue to face challenges working with other parties, in governing and operating shared facilities.  Each party, whether it is a condominium corporation, a retail/commercial owner or the developer, may have different objectives and this often leads to very lengthy and costly disputes.

It is important that board members and management take the time to understand the terms of shared facility agreements (also referred to as reciprocal or cost sharing agreements) and know what items are covered in the agreement and how decisions are made.   Many board members are surprised to learn that decisions may be made by unanimous agreement, that there is no shared facility management provided for or/and no reserve fund for shared facilities.

It is usually when disputes arise, that board members and management, look to legal counsel to review the agreement and soon discover what the issues are.

Here are a list of 8 top issues with Shared Facility Agreements:

1.    Unanimous decision making.  If parties don’t agree, how can decisions be made?

2.    Agreement does not provide for a shared facilities manager.   Who manages the shared facilities?

3.    Agreement provides for a shared facilities manager who was appointed by the developer and one or more parties want to terminate that management company. Unanimous decision making prevents termination of management if one party objects.

4.    Missing shared facility items. An item clearly being shared is not listed as a shared item.  Who pays for the cost and what portion of those costs?

5.    Proportionate shares of contribution are not equitable. The shared facilities agreement provided by the developer, will set out each parties respective proportionate share of costs relating to the shared facilities. It is down the road when the shared facilities are in operation, that it becomes evident that the split between the parties clearly favours one over the other.

6.    Shared facilities reserve fund is not in the agreement nor is a shared facilities reserve fund study required.   If there is no shared facilities reserve fund referred to in the agreement, then each party will contribute to their own reserve fund which will cover that portion of the shared facilities located within their property.  Commercial/retail owners, if a party to the agreement, would not require that a reserve fund be maintained for any shared facilities located within the boundaries of their property. This gives less control to the other parties over reserve fund repairs to the shared facilities.

7.    No shared facility committee.   Yes, there are agreements in which one party will manage the shared facilities and just report to the other. Decision making is made by one with the others only able to dispute decisions through mediation/arbitration proceedings.

8.    Quorum for shared facility meetings.   All parties must show up to make quorum.  What do you do when one party fails to attend?

If possible, the best solution to all these issues is to amend the shared facilities agreement, otherwise, condominium corporations will be faced with long drawn out legal proceedings.  Unfortunately, as is most often the case, it is only when proceedings are commenced that parties soon realize that the amendments are clearly the only way forward.

http://www.lashcondolaw.com/condominium-shared-facilities-top-8-issues/



Next let's talk about Privately Owned Patios....  like between The Firken and Eden in Humber Bay Shore... 

First Time Buyer Incentive

How do I know how much I have to pay back?

• You receive a 5% incentive of the home’s purchase price of $200,000, or $10,000. If your home value increases to $300,000 your payback would be 5% of the current value or $15,000.

• You receive a 10% incentive of the home’s purchase price of $200,000, or $20,000 and your home value decreases to $150,000, your repayment value will be 10% of the current value or $15,000.

You can repay the Incentive at any time without a pre-payment penalty. You have to repay the Incentive after 25 years or if the property is sold. The repayment of the Incentive is based on the property’s fair market value:

NOTE: If your property value goes down, you are still responsible for repaying the shared equity mortgage based on the current home value at time of repayment.

https://www.placetocallhome.ca/fthbi/first-time-homebuyer-incentive.cfm


@GarthTurner says First, the 5%  Justin-mortgage-helper limits the borrowed amount to four times the income of the borrower ($120,000 or less), which is less than the banks now offer every day. The formula also limits the purchase price to around $500,000, which buys a nice garage in Kits. But the worst aspect of this plan is the pay-back.

Once a borrower signs on for a shared-equity mortgage they’re obligated to share any gain with the feds after 25 years, or when the property’s sold. Since the purchase price is low, odds are the kids are buying fixer-uppers and will pour a lot of extra cash into renos over the next few years. Add in any market appreciation, and you can see the problem. A 5% helping hand on the original low purchase price can turn into a big cheque to Ottawa upon the sale a decade or two later – coming right out of the tax-free principal residence capital gains exemption.

Now, why would anyone sign on for that? And yet will federal advertising for this program? 

Your HOME can STAND out with the Walk Thru Video

Something crazy happens when an agent starts using video in their marketing.

It creates a massive impact on your prospects – because the words we hear echo in our minds 3-4 times longer than the words we read.

And when people SEE you, they trust you more, like you better… And you’ll look just as good as any agents in your market.

That’s why I want to share a super simple, fast video type anybody can do: The Walk Through Video.  This video can be inserted into the REALTOR.ca feed for your listing. 

https://youtu.be/Opm2KE7aJJM

The IMPACT Viewership will come from a Matterport 3D Virtual Tour like this;

Are you ready to try it?
Book an appointment now.
http://Calendly.com/davidpylyp

Share the pool with girls?

x

Some time ago we blogged about a lawsuit commenced by several condo owners in New Jersey against their condominium association after it instituted rules that restricted mixed-gender swimming in the association’s pool.

Approximately two-thirds of the condo residents are Orthodox Jews, whose faith prohibits men and women from bathing together. In order to accommodate the religious residents, the condominium association implemented rules that allow mixed-gender swimming only on Saturdays (which is the Jewish Sabbath and a day when the religious residents would not be using the swimming pool), and for two hours daily on the other days between 1:00 pm and 3:00 pm. For the balance of the week, time periods were allocated for separate men only and women only usage of the pool, 32.5 hours for men and 33.5 hours for men. However only 3 ½ hours were allocated for women on weeknight evenings, while 16 ½ hours were allocated for men on weeknight evenings. This detrimentally affected women who were employed during the day. In addition, the entire period from 4:00 pm onwards on Fridays was allocated to men. The condominium association tried to justify this disparity on the basis that Orthodox women would be busy on Friday afternoons preparing for the Sabbath.

The plaintiff owners claimed that the pool rules were discriminatory and in contravention of the federal Fair Housing Act and the New Jersey Law Against Discrimination. They commenced the lawsuit after they were fined by the association for swimming during the hours reserved for the opposite sex.

In January a judge ruled that the separate swim hours were not discriminatory as they applied to both sexes. However, that decision was overturned by the U.S. Court of Appeals for the Third Circuit. The Appeals Court determined that although approximately an equal number of hours were allocated to each sex, the rules discriminated against women as only 3 ½ hours were allocated for women on weeknight evenings, while 16 ½ hours were allocated for men on weeknight evenings.

It is interesting to note that the Court did not rule that the implementation of separate swimming hours for men and women for religious reasons was in itself discriminatory. While theses rules were implemented for religious reasons pertinent to Orthodox Jews, they applied to all of the residents regardless of their religious beliefs. As a result, some freedoms of the non-religious residents were curtailed in order to accommodate the religious beliefs of the majority of the residents. On the other hand, if the condominium association did not implement separate gender swimming hours, the failure to do so would have curtailed the freedom of the religious owners to enjoy the pool while still complying with their religious principles.

http://www.lashcondolaw.com/condo-rules-restricting-co-ed-swimming-court-decision/

What are the rules in your condo? 

Reverse Mortgage You really want it?

An Excellent perspective.

Reverse Mortgage
A reverse mortgage is simple. You get a bag of money to spend on anything and never have to pay it back. In return the lender goes on the title of your house and charges you interest and fees that you never really see. So over time the debt grows – the opposite of a conventional mortgage. The money is eventually returned to the lender when you sell the property or croak, in which case your estate pays.
The advantage is tax-free funds and no payments. The disadvantage is you’re eating up your real estate equity every month. For example, a 70-year-old living in a paid-for $1 million house, qualifies for a reverse mortgage of about $350,000. If that cash lasts for ten years of expenses, at age 80 the reverse mortgage debt will have grown to $670,000. Seven years later it will top $1 million. The heirs will be pissed.Want it?  https://www.greaterfool.ca/2019/04/23/in-reverse/

What you want can bite you later

Call to book an appointment 
http://Calendly.com/DavidPylyp

Sue the Condo Corp for Vandalism to your car

Condo Corporation Not Responsible for Parking Garage Vandalism – A Recent Case

http://www.lashcondolaw.com/condo-corporation-not-responsible-for-parking-garage-vandalism-a-recent-case/

In a recent case, Friedich v. MTCC No. 1018, a condominium resident unsuccessfully sued the condo corporation after his vehicle had been vandalized.

The corporation had made changes to its security for the garage. The previous telephone entry system was replaced by closed circuit televisions and security guard patrols every two hours.

The resident alleged that the changes to garage security resulted in easy access to vandals. He argued that the corporation had breached its obligation contained in section 17 of the Condominium Act, 1998, to control, manage and administer the common elements and was also negligent under the Occupiers’ Liability Act in failing to keep the parking garage secure.

The resident’s case was dismissed after the Court concluded that the resident did not provide any evidence that the change in the garage security made it more likely that his car would be vandalized or that the corporation’s security protocol fell below industry standards. The resident did not even provide any evidence to substantiate that his car had been vandalized while in the parking garage.

The Court stated that the corporation was not an insurer and determined that if there was any vandalism that occurred to the resident’s vehicle while in the garage, the damage was caused by criminals, not the condominium corporation. The Court found that the corporation had acted reasonably in hiring the security firm and that there was no evidence that the security firm did not discharge its duties in a professional and reputable manner.

The Court decision was upheld on appeal to the Superior Court of Justice. The dismissal of the appeal was based on the fact that the resident failed to establish that the corporation had breached the standard of care required under the Occupiers’ Liability Act.

The Superior Court also acknowledged that the Board’s business judgment concerning the security system was entitled to deference. The Ontario Court of Appeal has recognized that the “business judgment rule” applies to condominium board decisions. As long as the board of directors has acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, the courts will give deference to board decisions. Directors who have met the requisite standard of care won’t have to worry about the court “second-guessing” board decisions.

Condo Cameras VS the Right to Privacy

Police Surveillance Cameras in Condominiums
Should police be entitled to install video cameras in the condominium common elements in order to obtain evidence about suspect residents engaged in criminal activities?In the case of R.v. Brewster, it was revealed that the police had installed video cameras in the underground parking garages and the hallways of several condominiums. Some of the cameras were installed without a warrant, but with the permission of either the condo manager, or the condo manager and board of directors. Other cameras were installed after the police obtained a warrant authorizing the installations. The police obtained the warrant in the event that they would not be able to obtain the consent of the condo manager or board. However, consent was not refused by any of the condominiums.In all, there were 14 suspects associated with 14 units at 11 different condo buildings that were involved in the investigation. The police felt that video surveillance was necessary as it was not possible to conduct live physical surveillance as the suspects were armed, dangerous and members of organized criminal groups.When the warrant was granted certain restrictions were imposed:§ All observations could only be made by a police officer;
§ All cameras should be installed so as to minimize capturing any observations within a unit;
§ There would be no ability to capture any audio.
While the video cameras did not point directly at any residential unit, there were instances where the cameras captured glimpses of the interior of a unit and residents in the doorway (including residents of the condominium who were not the suspects of the investigation).In one condominium the condo manager gave the police a key fob and access code to gain entrance to the front lobby and the underground parking garage. This was done without the knowledge of the board. After police requested to install a hidden camera in the ceiling of the hallway, the manager obtained the consent of the board to allow the installation, but did not inform the board of the location of the camera.The accused in this case argued that their rights under section 8 of the Canadian Charter of Rights and Freedoms had been violated as the police investigation involved unreasonable search and seizure that was not authorized by law. They took the position that a warrant was required and that the consent of the condominium management/board was not sufficient to lawfully authorize the surveillance cameras.The Ontario Superior Court of Justice determined that the condominium property management and board have the “full authority to determine these kinds of issues, relating to the safety and security of the common areas of the building, including the installation of surveillance cameras”.

The Court also implied that the condominium management or the corporation, itself, had a moral or social duty to assist the police:“. . . the law-abiding citizens of the condominium building are entitled to cooperate with a police investigation, pursuant to their ‘moral or social duty’ and in order to protect their own interest in the security and safety of the building. In doing so, they act through the agency of the building management.”

 The Court also concluded that no warrant was needed to authorize the installation of the cameras in the common elements as police observations and videos of the hallway were no different than police observations and videos taken from the street or sidewalk of a free-standing house. It was also noted that many condominiums have their own video surveillance cameras installed in the common elements to enhance the security of the condominium.

“. . . surveillance cameras are commonplace in the lobbies, parking garages, elevators and hallways of condominium buildings, indicating that the owners accept this reduction of their privacy interest in these common areas that lead to their homes, in favour of collective security. This interest in enhanced security in the common areas of condominium buildings is not surprising, given that a resident of a multi-unit building is living in very close proximity to neighbours who may not be known and who may be suspicious or even dangerous.”” There is no reasonable expectation of privacy (or a very low privacy interest) in common areas like parking garages, lobbies, elevators and hallways, provided that police do not conduct intrusive surveillance of activities inside the apartment or condominium unit from their vantage point in the common areas.”The Court further noted that while there was some interference with the privacy interests of innocent third parties, these instances were brief and were not significant.The accused have appealed the decision. The appeal is scheduled to be heard on April 8, 2019. While the appeal decision will directly affect the accused in the case, the decision will also be of interest to condominium management, boards and residents as it will look at the extent to which police can install  video surveillance cameras in condominium common elements and the privacy rights of residents while on the common elements.

What do you think?