By Nancy Houle and David Lu
Concerns about COVID-19 are in the forefront of all of our minds. We have received numerous questions about what this means for the condominium industry.
For many residential condominium owners, their unit is both their primary investment and, more importantly, their home. Many condominiums are close communities, with frequent contacts between members of the community. Also, condominium communities hold meetings: in fact they are legally required to meet! Therefore, the potential sharing of infectious agents is a key concern for all condominium communities and their directors and managers. For these reasons, we need to turn our minds to certain key issues which will impact the day to day lives of those living in, and servicing, the condominium community.
Meetings: Formal and informal gatherings
The most common recommendation to help mitigate risk and spread is social distancing. As of March 15th, Ottawa Public Health has urged residents to:
- strengthen their social distancing measures;
- cancel any planned events or gatherings of all sizes; and
- not go out for non-essential reasons.
What does this mean for a condominium corporation’s legal obligation to hold board of directors, or owners, meetings?
With current technology, urgent matters can still move forward without a full-scale physical meeting. A board can resolve to hold all board meetings by teleconference or a similar means of concurrent communication until, or unless, the Board resolves otherwise. [This is already authorized by the Condominium Act if all Directors agree. In our view, in current circumstances this can be required if the Board so resolves.]
Alternatively, the Board can resolve to suspend Board meetings and instead reach decisions by email exchange between Board members on the understanding that such decisions will be ratified by formal Board resolution at the next Board meeting.
For other meetings such as AGMs however, if the meeting cannot be held by other means (i.e. by way of proxies or other electronic forms), they will likely need to be postponed. A board can decide to suspend owners’ meetings, even if this means that the condominium corporation fails to hold its AGM within six months of the year end, as required by the Condominium Act. In our view, the six-month time period can be legally exceeded where the delay is reasonably justified in the circumstances, which certainly is the case during the current crisis.
We defer to boards and managers on the practical possibilities of arranging for electronic attendance or other alternative arrangements. In our view, if a condominium corporation provides advance notice and there is no objection at the meeting, a technical breach of the Condominium Act would not make the meeting invalid.
Messaging: Communications to owners
In times such as these, effective and timely communication within the condominium community can help provide comfort to owners that the Board of Directors and Management are giving these matters proper attention. We have prepared a draft initial notice to residents; anyone wishing to have a copy can send us an email (david@davidsoncondolaw.ca)and we would be happy to provide one.
As events in the community unfold, and particularly as meetings of owners arise, ongoing situation-specific messaging will assist in providing owners and residents with some comfort that the condominium corporation is actively engaged in taking all reasonable steps to deal with the evolving situation.
Maintenance
While the condominium corporation cannot, of course, guarantee that spread of the infection will be prevented, the condo corporation should take steps to mitigate the potential for the spread of infection on the common-element areas. Such steps may include:
- Increasing the availability of hand sanitizers or soap in common elements (bathrooms, gym, etc.), where possible;
- Augmenting the cleaning and disinfecting of common areas;
- Installing signage on the common-element areas with reminders to owners of the steps which owners can take to assist in mitigating the spread of infection (i.e. the recommendations from from Ottawa Public Health set out above);
- Possibly prohibiting social activities and gatherings on the common elements and/or closing down the amenities altogether;
- Allowing owners who have tested positive for COVID-19 to report their status, on a confidential basis, to the condominium corporation, so that appropriate measures can be taken.
Please note that condominium boards likely don’t have the right to prohibit residents from inviting others to the property and/or having deliveries made to their units. Nonetheless, condominium boards should enact arrangements and/or restrictions that are appropriate to their community to help mitigate the spread of infection. By working with owners and residents, condominium corporations can play a helpful role in trying to limit the negative effects of this virus in their communities.Nancy Houle is a Partner and David Lu is an Associate at Davidson Houle Allen LLP, a boutique Condominium Law firm serving Eastern