Position Statements
Increased Status Certificate Fee and Liability Limitation
The fee associated with the preparation of a status certificate is inadequate and the potential for liability is too high.
The fee has not changed in more than 20 years and the complexity of its proper preparation has been increased. The effective execution of this task obligates its proper preparation and compensation in keeping with the complexity of the task.
Unreasonable expectation: Errors or omissions in the preparation of a status certificate carries liability for the condominium corporation or the management service provider. In the current environment, where condominium corporations face unknown costs given current tariff wars, estimates for major repairs and replacements and budgets are likely to be out of line. Statements which might make their way into the status certificates today, attempting to protect condominium corporations from liability, will provide no new or different disclosure than what can be gleaned from watching the daily news. Managers cannot predict the future and should not be held accountable for every unforeseen event.
No comparable precedent for liability exposure: Engineers and solicitors, who are considered professionals under the Condominium Act, 1998 upon whom directors can rely, do not accept liability for drafting similar documents. Attachments to the status certificate which may include the reserve fund study, the notice of future funding, and specialized communications are often drafted by solicitors with respect to special projects, special assessments or circumstances which are under investigation; and yet, management service providers are subject to blanket liability with no maximum exposure.
Marketability pressures: The argument that a higher fee for a status certificate might prevent a sale from going through just doesn’t hold water. With the average price of condominiums in the GTA being around $700,000, paying an additional $500 to learn vital information about a home should not be significant enough to discourage a purchase. Additionally, a realtor gets paid a hefty fee for selling a condominium. It is the cost of doing business. How is it possible that management service providers and their staff can be expected to continuously absorb the workload represented by new and ever evolving regulations without receiving increased payment?
Moreover, this argument clearly demonstrates the conflict faced by managers and management service providers who face pressure and can incur liability for “title slander” in being overly cautious in the preparation of a status certificate.
Expansion of Condominium Authority Tribunal (CAT) to Include Meetings
A rapid, independent third-party adjudication of controversial voting and balloting issues would lessen community polarization: Though imperfect, we expect the Condominium Authority Tribunal (CAT) to understand the value of consumer protection in the context of a necessarily communal environment. A controversy with respect to election results or voting and balloting issues can increase division and polarity within a condominium community. A rapid adjudication by an independent third party could increase confidence in the process and enable communities to move on.
Timelines and process guidelines will be critical: The records of an election or voting and balloting issue determined at an annual or general meeting of owners could easily and quickly be provided to the CAT for their immediate review and adjudication. Because they will be reviewed by an independent third party, there will be no need for redaction. Absent a ruling to the contrary by the CAT, a duly elected director should hold office and all the authority of a director under The Condominium Act, 1998 as amended. We view it to be reasonable that the CAT be provided these records within 10 days of their request and that the CAT make a ruling with respect to their determination within 5 days.
Like a requisition of meeting, the CAT review of election, voting or balloting issues must be supported by 15% of owners: In the same way that no solitary citizen can demand an election recount, no single owner should be entitled to invoke the CAT to invalidate the election results at their condominium corporation. Such a burden would create an administrative hurdle and compromise the consumer protection deserved by condominium owners. In keeping with this expectation, established with reference to both the requisition of a meeting and the inclusion of additional materials in a notice of meeting package, the rapid adjudication of election, voting or balloting issues must be supported by 15% of owners.
The adjudication of election, voting or balloting issues must be limited to 30 days following the date of a meeting: The rapid, third-party review and determination of an election, voting or balloting issue is only effective and meaningful if it is specific to that meeting and not as a tool for removing a duly elected board in the future. Additionally, in the event that there is a cost incurred for the adjudication, the winner should be indemnified.
Few records requests result in costs to the requester: Nearly all records requests are fulfilled by managers and/or management companies quickly, capably, cost effectively, or free of charge. Frankly many have taken the time and effort to create vehicles within the communities they manage to ensure that core records are easily accessible by members of the community directly: by posting them to a community website or having printed copies available from the community library or the management office.
Fishing expeditions compromise the ability Condominium Corporations to be managed by boards and managers: As consumer protection legislation, the needs of the “common good” must be balanced. Where this is not considered, your average condominium owner is penalized. Time is taken from actions which manage and govern the condominium corporation in service of a special interest. Condominiums are intended to be democratic, communal, and collaborative. Unfortunately, bad actors in “Condoland” have and do abuse records requests creating a drain on the time of the board, managers, and management service providers. Often, the most outrageous requests are made by those who seek to gain power, disrupt operations for their own benefit or otherwise detract from tasks which are a priority in service of the community.
The provision of non-core records is complicated and nuanced. Most often, redaction requires the careful eye of a very senior, experienced manager or legal professional. Why should your average condominium owner be responsible for the costs associated with a bad actor? The Condominium Management Regulatory Authority has established tasks which can be undertaken by administrative staff, limited licensees (OLCM-L) and general license holders (OLCM). This task can only be completed by those with a general license, specialized legal or other knowledge (for instance in removing or obscuring the identity of others in video surveillance footage).
The beneficiary of the service must bear the cost: The delineation of core and non-core records already established an “access to justice” framework for condominium corporations with respect to records, record keeping and service delivery. The balance that now must be struck is to remove the opportunity for systemic abuse. It is reasonable for the recipient of the record to therefore absorb the costs associated with its production. This concept is well received by requesters without a nefarious agenda.
Reduction of Administrative Burden in Service of Productive Administrative Tasks
Dispense with the New Owner Information Certificate: Information included in the new owner information certificate is found in the status certificate. All of the documents provided with a status certificate constitute are core records. A status certificate is obtained in finalizing the purchase of a condominium. Offers of purchase and sale are often contingent upon its review. Review by prospective purchasers and/or their solicitors is undertaken prior to closing. Therefore, no new information is provided in the new owner information certificate, which is purely an administrative burden to condominium managers, management service providers and if chargeable an addition and unwarranted cost to condominium corporations and by extension their members (individual home owners).
