Developing community standards

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Developing community standards


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November, 2008

By Ron Danks

Condominium homeowners often question the necessity of having so many bylaws and rules governing their day to day use of the common areas and their units. They view bylaws and rules negatively, as restrictions rather than consider the positive effects that they have in promoting the enjoyment of their condominium lifestyle. These owners often forget that in a freehold home setting there is no Board or property manager to intervene with the people next door whose dog keeps them up all night and there are no rules that can be used to stop the family next door from turning their driveway into an auto-body shop.

To a certain extent, bylaws are a necessity in condominiums because the condominium lifestyle generally means that a large number of people will be living in very close proximity to one another. As such, bylaws and rules are needed to ensure that owners don't encroach on someone else’s space.

However, bylaws and rules can be much more than a list of procedures and restrictions; they can be the foundation upon which a sense of community can be built. In essence they become the standards of the community. Standards that each member of the community will be expected to live up to and, in turn, can expect all of the other members of the community to abide by. A carefully considered and properly drafted set of community standards will benefit the members of the community by providing them with: certainty, guidance, order, safety and security, individual freedom and an equitable sharing of common areas.

All too often condominium Boards lose sight of the true purpose of having a good set of bylaws or rules and enact them for the wrong reasons causing turmoil within the community. In the following notes we will review a step by step approach to developing a good set of community standards.

It is important to ensure that bylaws and rules are up-to-date and are enacted properly. In Ontario, new condominium legislation came into effect on May 5th, 2001, that made substantial changes to all aspects of condominium law and administration. In some cases it rendered certain types of bylaws obsolete, such as the common general “borrowing” bylaws; under the current legislation a condominium must pass a new bylaw each time it wants to borrow. The new Ontario Act also gave boards of directors new options in developing bylaws that were more attuned to their needs. Since then thousands of condominiums have replaced their old bylaws with new “customized” versions. Creation The following preliminary steps should be considered when contemplating the creation of a new bylaw or rule. Identify the problem: a bylaw prohibiting loitering around a playground might be considered for a vandalism problem, but it won't work if the vandals are from outside the condominium, in that case fences, lighting, signage and police assistance might better address the issue. Review existing bylaws: a current bylaw might be used to deal with the problem as effectively as a new one, for example general nuisance rules can be used to deal with many different types of issues. Look for an alternative solution: look to the Act, local zoning bylaws, or other laws and regulations to see if there is another way of dealing with the problem. Watch for conflicts: think about whether the new bylaw or rule may conflict with other bylaws, or provisions in the Act, or other laws such as Human Rights legislation. Get advice: ask for advice from the corporation's lawyer and management. Create a draft bylaw for review: often something that sounds good in theory doesn't translate well when reduced to writing so create a draft for the Board to review and include with it a short summary of what the problem is and why a bylaw is necessary to deal with it. Seek owner input: consider circulating the proposed bylaw or rule amongst the owners and ask for constructive feedback. Is it reasonable: ask yourselves two final questions; Is this bylaw or rule reasonable and would I abide by it? If the answer to either question is no ... try again. Make the decision: once you are satisfied a bylaw or rule is necessary, appropriate and will be accepted by the majority of the owners, implement it in accordance with the applicable legislation to ensure that it is enforceable. Practical Considerations Bylaws and rules should be capable of being implemented and enforced without a significant change in lifestyle for the majority of owners. They should be enacted only if they are absolutely necessary and should be designed so that they affect the fewest activities possible. They should be drafted carefully and contain a large dose of common sense. The following are some practical matters to consider when creating a new bylaw or rule. Use simple language: if you don’t understand it neither will the owners. A bylaw or rule will only be effective if the majority of owners comply with it: if you don't think the bylaw or rule will be obeyed by the majority, you probably don't need it. Don’t try to kill a flea with an elephant gun: focus the bylaw or rule on the problem that gave rise to it in the first place. Don't make it so broad that it becomes a serious infringement on the owner’s right to enjoy the common areas. Consider what the side effects of your new bylaw may be: are you curing one problem but creating two more? Consider whether the bylaw can be enforced on a day to day basis and who will be responsible for enforcing it: consider an actual rule that the writer once came across that stated that there was to be no noise over a certain "decibel" level after 11:00 p.m. How was this rule to be enforced? Would board members have sound equipment available twenty-four hours a day to test the decibel level of the noise? Make sure that residents, (owners and tenants) understand why the bylaw or rule was created and what it means: many good bylaws have been defeated by bad communication. Consider whether a formal bylaw or rule is needed as opposed to a policy or guideline: some things are better left to the discretion of the Board. When developing a new bylaw or rule take the time to carefully consider the process outlined above. Bylaws and rules are often created as a reaction to an unanticipated problem. Hastily enacted bylaws or rules may do more harm than good when, after the fact, the Board realizes that it went too far or didn't properly address the issue that gave rise to the problem. It can also cause dissension among the owners and result in a lack of confidence in the Board's ability to manage the affairs of the corporation. Carefully considered and properly drafted bylaws and rules will serve to enhance the enjoyment of the common areas. Ron Danks, B.A.,(Hons) L.L.B. , ACCI, FCCI, is a partner with the Hamilton and Burlington business law firm of SimpsonWigle Law LLP. Ron has practised in the field of condominium law and administration for over 20 years. He currently represents over 650 condominium corporations throughout Southern Ontario.




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