Mold Under the Floor - Who is Responsible for the damages?

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Hello

I really hope that you can help me. I am begging for your help, please. I have concerns about the mold that has developed under my hardwood floors because of a leak that my neighbor had from his washer last year. I live in an apartment style condo and the Board has insisted that I get this fixed because of the health hazard. Now I am looking at remediation (removal of mold) by professionals at my expense have been told by the Board that I then need to sue my neighbor to recoup my loses. The condo board is saying that it is my fault that mold is growing because I did not get my floor fixed by my neighbor yet and thus mold has developed in that time. I had no idea about mold issues and no one on the board or the management company made me aware of these dangers, if they did I would never of let this happen. I have since been told that the board was responsible per the Act and the Bylaws, unfortunately no one will look these documents over to prove this and I cannot clearly understand the technical jargon. Please I desperately need someone's help and you are the only place I know and trust to turn. I will pay a fee if someone could just take a few moments to confirm were the responsibility lies. I don't know where else to go. I know that the board is very inexperienced and our condo manager just moved here from another country and has already been chastised for giving me erroneous information and it is this same person that is advising the board. I very much need assistance

S.

Dear S.

This is a situation that could happen to anyone, unsuspectedly. There is not enough information in the hands of owners and board members regarding molds and toxins in the home, and how quick molds can form (in as little as 72 hours). This happens to be an area of great interest to me. Here is the address to a blog that provides information on wellness , which includes some information on toxins in the home, www.advocatesfromwellness.com, and read the February 2005 issue of the Condo E-magazine at www.condo-check.com .

With regards to who is responsible. The wording in your condominium bylaws is going to have an impact on determining who is responsible as well as the Insurance provisions in condominium Property Act and Regulations of Alberta, and the record kept by the board of directors in attending to the original water damage repair.

The Condominium Property Act of Alberta and the condominium Property Regulations, in particular, Part 6 which specifically states that the Corporation must place and maintain insurance against the following perils: fire; leakage from fire protective equipment; lightning;smoke;windstorm;hail;explosion of natural, coal or manufactured gas; water damage caused by flood; water damage caused by sewer back-up or the sudden and accidental escape of water or steam from within a plumbing, heating, sprinkler or air conditioning system or a domestic appliance that is located within an insured building,.... And any other perils as required by bylaws.

I believe what this wording is saying is that the Corporation is to insure for the accidental escape of water from a domestic appliance, as in this case. The question remaining is was the escape accidental or negligence on the part of your neighbor? In the case of negligence the neigbour may be responsible for the damages that resulted.

We are not insurance specialists, which is where this problem falls. From our years of experience I would suggest the following: Ask the Board of Directors for the information that was obtained when the leak happened and for a copy of the reasoning for their conclusion that this was an owners problem. Inquire as to if the corporation insurance company was notified or not? Insurance companies typically notify the board and the owners of the potential hazard of mold occurring when there are water leaks and provide assistance in preventing the damage from expanding.

Worse case, if the board did inform you, when the leak occurred, that you were responsible for negotiating the repair of the damage with your neigbour, and you did nothing, even if they did not mention future damage risks, they may argue that you would at miniumum be responsible for the added damage that occurred when the problem was left unremedied.

I suggest you get the mold removed as quick as is possible as your health may be at risk. Contact the insurance company that carries your personal policy. They will most likely assist you in assessing who is responsible for the damages and may cover the remedy. You won't know until you speak with them.

In the interim, obtain the information from the board. Allow them a reasonable time to get this to you, 10 days should be sufficient. You may choose to have a conversation with your neighbor about what he did to remedy the problem and explore the options regarding his willingness to assisting you in the cost of the repairs, and have a talk with your personal insurance carrier.

Once you have acquired the above information, give Louise a call at Condo-Check and she will be able to assist you in choosing the best plan of action to resolve this matter.

When is a financial Audit Required?

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Hi folks:

Does the condo corporation have to have an annual audited statement or simply a financial statement? There is quite a difference in price between both.

Hear from you soon.
R. G.

Answer

Dear R. G.

The answer to the question of whether a condominium corporation requires the financial records to be audited annually or not is found in the bylaws of the corporation. You will typically find this information in the bylaw section "Duties of the Corporation" or "Powers of the Corporation".

In the case where the bylaws do not require an annual audit it is advisable that the corporation have an independent financial review and report completed by a professional accounting service at their fiscal year end.

Should your corporation require an annual audit, be sure to follow the bylaws regarding selection of the Auditor.

Thank you for submitting your question to Betty's Condo Owners Club.

Bare Land Condominium

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In a Saturday issue of the Calgary Herald earlier this Month, a number of "Buying Terms" were defined and the definition of a Bare land Condominium included the statement that "only the land is condominium". What does that mean?

In your article in the Calgary Herald on March 12th, 2005 you state that "In a bare land condo, it is possible for owners to be responsible for building repairs and replacement...". I assumed you meant that these owners could be totally responsible for building repairs and replacement for the building on their own unit if this is what the Bylaws provided for. Does this mean that a Condominium Corporation could walk away from its present obligations to maintain buildings on owner's units by changing their Bylaws to exclude this responsibility?

Regards,


J. E.

Great Questions J. E.

There is a lot of confusion out there about what bare land condominium is and who is responsible for what and this is not an easy concept to write about. I will try and answer these a clearly as I can.

Your first question - What does the statement mean "only the land is a condominium"?

• The boundaries that determine the area of a unit in a bare land condominium are based on pins (stakes) in the ground, marking out the area of land that forms the condominium units, therefore the condominium is technically "land only".
• these land areas become the units of condominium which are owned by way of a title,
• all areas inside the land unit, including any buildings, are owned by the owner of the condominium unit of land and are the responsibility of the owner, subject to any restrictions registered against that title, or the condominium unit by way of a bylaw.

Question 2

...In a bare land condo, it is possible for owners to be responsible for building repairs and replacement. I assumed you meant that these owners could be totally responsible for building repairs and replacement for the building on their own unit if this is what the Bylaws provided for. Does this mean that a Condominium Corporation could walk away from its present obligations to maintain buildings on owner's units by changing their Bylaws to exclude this responsibility?

• in all forms of condominium, including bare land, the Unit of ownership comes with a bundle of rights that is the same as any real estate that is owned in Alberta,
• this bundle of rights gives an owner the right to rent their unit, to transfer it in their will and to do with it whatever they choose, subject to any restrictions registered on the title, or by way of a condominium bylaw, or a municipal bylaw.
• in a bare land condominium anything contained inside the unit is the sole responsibility of the owner, provided there are no restrictions registered on the titles to the unit. By amending the bylaws the Corporation can transfer the responsibility for maintenance from the owners to the Corporation. They would require a 75% majority of the owners registered on title and representation of 7500 unit factors to do this. The corporation must maintain and continue to provide insurance for Directors and Officers and any property it owns, as well as the common property.

Although in a bare land condominium this flexability is available, I suggest the issue be investigated thoroughly, as the marketability of a condominium where there are no services can be impeded. This is not always the case, as in acreage condominiums, however, the vast majority of condominium buyers choose condominium living for the lifestyle and that means services. The other factor is in keeping the property clean, tidy and the buildings maintained. In a condominium the economies of scale factor can result in great savings to an owner. With the savings plan for capital repairs and replacement being a mandatory requirement this ensures the funds are available when major repairs are required. These are a few of the reasons that the majority of bare land condominiums have bylaws that give the corporation the responsibility to repair and replace the building exteriors. All these factors need to be considered when making such a big decision.

In short the key thing to remember is that in a bare land condominium the Act applies to the area inside the "lot of land" when it refers to a "Unit" and the building inside the "Unit" is part of that "Unit". The bylaws can transfer the responsibility for repairs, maintenance, control, and management of areas inside a Unit to the Condominium Corporation.

Should amending the bylaws be something your condominium corporation should like to pursue please contact us as we can provide consulting and bylaw amendment assistance. Contact us through the email address condocheck@shawbiz.ca.

Thank you for submitting your questions. I hope this makes things a little clearer.

BCOC

Is a PIG a PET?

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Dear Betty:

We are managing a beautiful building which we took over last year. We had been hearing comments that someone had a pet pig and the pig was seen in the courtyard on several occasions.

Finally, the Board was able to track down the “home unit” where the pig resides.

Of course, the Bylaws are clear on what type of pets… pigs are not included.

The Corporation served notice on the owner to have the pig removed permanently from the premises as it is not an approved pet and quite a few people are appalled at this. The other day I received a call from an elderly lady who lives in the building and she said she was getting on the elevator and was sure she heard a “pig” snorting.

If the owner does not remove the pig, I guess we have no alternative but to take to legal action. Is this correct?

The last email I received was from a gentleman who lives next door to the pig and he basically said, “ If I wanted to live next door to a pig, I would have bought a Barn”.

And they wonder why property managers are stressed!

CM

Dear CM

In most bylaws "Livestock" are not permitted, whether purchased in a pet store or from a farmer. It would seem this is a clear bylaw infraction.

Remedies would range from the ability to fine the owner (if bylaws allow this) to filing an injunction with the Court of Queens Bench. I would suggest the Board request this "pig" be removed within 5 days (or whatever is reasonable) and follow with a fine and legal action if the owner insists on ignoring the pet bylaw.

You may want to check with the City bylaws as a PIG may fall under their rules of where livestock can be housed.

In any case I think the Pig will need to go. Be sure this owner is clear on what qualifies as a "pet" in future!

Thanks for sharing your adventure!

Titled Parking and Restrictions on Owners

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Dear Betty:

A quick question regarding parking and our condominium bylaws. I am part of a condo board for a building in the Calgary downtown core. We have within our bylaws, under the Exclusive Use of Property section, the following section:

Article 8 - Exclusive Use Common Property section

8.5 Parking Stalls "Notwithstanding anything to the contrary hereinbefore contained the Board shall be at liberty to either allocate or approve and generally regulate the usage of any vehicular parking stalls which are common property, and generally regulate the use of the vehicular parking facilities in the Project to enable safe and orderly use of such parking facilities. Only Occupants may use parking stalls and storage lockers. Further, guests shall only use parking stalls and storage lockers in accordance with policies as established by the Corporation."

We currently have a number of unit owners who are of the opinion that it is within their right as owners of their titled parking stalls, that they allow non-residents to use their parking stalls, and remain within compliance of the bylaw. As each unit owner requires the use of a security pass to enter our building as well as the underground parkade, we the Board are concerned with:

a) non-compliance with the bylaw
b) security concerns due to strangers having access to our building and whatever floors the security passes allow them to access.
c) from a legal perspective, how much control does the owner of each titled parking stall to do what they want with the stall? For example, leasing or lending it out to non-residents.

As a Board, we are attempting to provide a consistent approach to this issue and are planning on taking the approach that the owner is:

a) in contravention of the bylaw
b) poses a security concern for the rest of the building

We are unsure of the legal side of things. Can you provide us with some thoughts on this for use in a discussion at our next board meeting?


D & T

Answer/Response

We are not lawyers so we can not give you a legal opinion or legal advice. The comments made here are from experience only and are in no way to be interpreted as legal opinion. Please seek the opinion of a condominium lawyer in this regard.

First we are assuming the parking areas are owned by way of a separate title, and are not exclusive use areas that are leased or assigned to the owners.

The bylaw section that you inserted in your question is with reference to common property that is exclusive use to specific owners.

Technically, titled parking stalls are "Unit" property and are not part of the common property. It is therefore reasonable for owners to interpret this as a section of the bylaws as it does not apply to their titled parking units.

Typically bylaws have wording that is specific to the rules regarding the titled parking spaces, and in many cases restrictions such as those you desire are also found as a restrictive covenant, registered on the title to the parking stall unit.

It has been our experience that in a situation where there are separate titles for the parking units and there is no restrictions in the bylaws or registered on the title itself, that the owners of these titles have the same rights as those that come with the residential units. In other words, the Condominium Property Act states that an owner can not be restricted from leasing out a unit in a condominium. This would include a parking unit or storage unit.

At best bylaws or a restrictive covenant can restrict these rights to lease the unit to someone who lives in the condominium property. Without this restriction being evident in the bylaws or restrictive covenant the Act would prevail.

If there is no restriction registered on the titles to these parking units then, it would be a suggestion to amend the bylaws to restrict the leasing of these parking stalls to owners in the condominium itself.

Regarding the application of the bylaw you quoted, we recommend that you seek a legal opinion to determine if the bylaw you quoted would govern the titled parking areas as well.

Thank you for submitting your question to Betty's Condo Owners Club.

Unit Factor Allocation & Mixed Operating Costs

Question:

We are working with a developer to prepare preliminary budgets. One condominium plan; 94 townhouse units; 92 coach home units. The townhouse unit owners pay all utilities, except common area lighting (parking lot). The coach homes are 8 to 12 units per building with common heating. Surface parking is common to both types, as is grounds maintenance.
We have two budgets; one each for the two styles of buildings.

The question posed to us is how to weight the utilities components when the surveyor calculates the unit factors.

Have you encountered something similar? And, can you share any information?

Thanks for your help.

L. H. Property Administrator

Answer:

Here are two suggestions on how to handle this difference in the utility usage.

1. calculate the unit factors by using the total expense budget for the separate types of units instead of using the area.

i.e. determine the cost per unit per building type (total budget for townhomes / number of townhouses/12) and do the same for the coach homes. This number becomes the unit factor for the different types. Using this method the unit factors are the same for each unit in the townhouses or coach homes so this only works when the units are comparable in the amount of utilities each would use.

or

2. Use the approximate area as the basis for the unit factor allocation. To deal with the inequity in condominium fees put a formula in the bylaws stating how the operating costs will be allocated. (i.e. based on separate budgets for the different types of buildings)

The proposed bylaws will require this wording or a bylaw amendment would be required.