Condo Loses Court Case, Considers Fining Defendant Anyways

Gateway Plaza Condominium Association, Vail Colorado, has been unsuccessful in preventing the Arthrex company from opening a surgical training centre in their complex.

The complex, a mixed use building, holds 9 residential condos and about 9 current commercial tenants (realtors, a couple marketing/media companies, designers, financial advisors, and some home contractors and an upscale restaurant). The space Arthrex is looking to utilize previously held a medical office with OB/GYN and ear, nose and throat doctors.

Charles Lipton, president of the condo association, in what I can only read as an act of pettiness and donkey-ness, has indicated the board will examine fining the company for every day it runs the surgical training center. This is a classic example of a board looking at its quasi-judicial powers, and the ability to be their own judge, jury, and executioner (as the real courts didn’t award them their court case) to sledgehammer whoever ticks them off or fails to meet their level of decency.

Hey, if you don’t win in a actual, honest to goodness, real court – you might as well utilize your divine right of condominium to correct that!

Arthrex’s cardinal sin – the surgical (note “surgical”) training lab will utilize parts of actual cadavers. Specifically, the training will use human joints in educating surgeons on orthopedic procedures.

It’s not like the training lab is serving Soylent Green. There’s already a restaurant in the complex.

Inconsistent Bylaw Enforcement will Not Get You Off The Hook For Your Own Violation

I’ve had the opportunity, as a board member, to listen to owners indicate why they shouldn’t be fined for violating bylaws. The most common (amongst many) defense against being fined is “but you didn’t enforce the bylaw in these 12 different issues or instances.”

It is a very rare event where a board will use the bylaws to personally target a specific owner. In the vast majority of cases, the board is working as best they can to enforce the bylaws on all owners. Most boards constantly attempt to respond to all the violations that are presented to the board.

This is fine as there isn’t a standard of duty for boards requiring perfect enforcement of the bylaws. The board is required to be neither omniscient regarding the depth of bylaw violations, nor perfect in its application of the bylaws. They are allowed to be reasonably inconsistent. Really!

In the 2011 ruling of Peel Condominium Corporation No. 108 and Donna Young, the Ontario Superior Court of Justice ruled that even though the owner accurately identified many other violations of the condominium bylaws that haven’t been addressed by the board. The court continued that

there has been a degree of selective enforcement by the applicant sufficient to give rise to a concern.  However, it does not approach the sort of rampant non-enforcement that has arisen in some cases

and

There is an interest, in the collective, in having the Declaration enforced, even if some transgressors have been allowed to violate it.

So, highlighting that your neighbours seem to have escaped the gaze of the board and you haven’t will likely prove a poor defence (and in essence an admittance of guilt) to your violation.

Great Letter That Made Insurance Company Payout Special Assessment Claim

Once and a while, you really just have to blog a post that says “go over to this site and read it.” So that’s what I have here.

The Consumerist (a great site) reprints a reader’s letter to their insurance company, in full, that was successful in getting the coverage he bought fulfilled. His coverage included payout for special assessments – which the condominium applied to owners in order to fix the glass railings around his condo.

The tone and approach are perfect for anyone else that is suffering issues with their insurance not fulfilling their product payouts.

Tenants Must Allow Access Through Their Units to Common Property (Balconies)

There is a substantial amount of condominium homeowners that have balconies as part of their unit. If they check their bylaws, with a few exceptions, that balcony doesn’t constitute part of their unit, even though the only way on – forgiving the idea of a hook, rope, and a nimble climber – is through their unit.

Balconies tend to be part of the common property – owned and directly controlled by the corporation. Just like hallways, elevators, parking lots, and the grounds, balconies are under the jurisdiction of the corporation, not the owner.

In the case of balconies where the only natural access is through the unit, most bylaws indicate that balconies, through common property, have been assigned as exclusive use to the attached unit. That means your neighbour, envious of your pine tree view of the local skid row (as example) couldn’t just come over and have a seat on the attached balcony. The balcony has been assigned as exclusive use for you. You could still invite your neighbour over, but it would be at your discretion.

As common property, the board has the right to access the balcony upon request, and make any changes to the structure or the building around it.

Two owners recently found this fact out. Bernadette Rosenstadt and Brenda Bishop of the Queens Towers condominium in North Carolina filed motion to block the corporation from accessing their units and to prevent the installation of awnings. The original case and the appeal both found the condominium has the right to access the balcony through the unit, and install awnings.

The appeals review is a really good read and the judge does a very fine job going through why the action against the condominium was denied – going through many points which are applicable if you live in North Carolina, the USA, Canada or abroad.

At the heart of the argument is the definition of the owners unit (which doesn’t include balconies), the definition of common property (which includes balconies) and therefore the right of the condominium to access and modify, as also supported by the bylaws and founding documents.

So in the end, if your corporation wants access to your balcony, you’ll need to grant them access through your unit.

Ms. Rosenstadt had been previously involved with action against her condominium (and here) corporation, and there too wasn’t all that successful in her demands.