Answers to your common COVID-19 questions Part 2

In an effort to keep everyone updated on the constantly changing situations being faced by Condominiums, we are forwarding another letter for your information. As always, this information is generic and each situation is different. Please speak to your legal counsel if you have any questions.

Please feel free to contact our office if you have any further or specific questions related to your community.

Q1: Can the Board stop collecting common expenses?

A1: Our position is no. The Board has a duty to look after the long term interests of the property and the expenses of the Corporation continue regardless of the financial difficulties some owners may be faced with. Some Boards may wish to try to accommodate specific owners that ask for assistance on a case by case basis, but while some accommodations may be clearly warranted we generally discourage such practice as Boards may not be equipped to make equitable distinctions among owners who claim hardship as well as those that do not claim hardship but who may be suffering as well. Also, it is generally the role of government to accommodate such hardships, not of Condominiums. In any event, we recommend that Corporations abide by the 90 day time limit to register liens due to the lack of clear guidance from the government as to any related risks. Again, it is our recommendation that a blanket waiver or deferral of common expenses should not be done. There are other options that can be considered but please speak to your lawyer about possible considerations.

Q2: Can we close the common element amenities?

A2: Yes and in our opinion, all common element facilities including private parks or green spaces should already be closed for common use to prevent unlawful gatherings. All gyms, libraries and party rooms should be temporarily closed during this crisis. By allowing the continued use of these spaces, the Board risks the health of everyone, especially any cleaners or workers that are exposed to these areas.

Q3: Can we stop all visitors to the property?

A3: This is more problematic. Some of our clients have done exactly that and implemented a “no visitor” ban during this period. Please note that there must be exceptions to any such ban, such as for health care workers, delivery of food etc. Please be careful in implementing a ban of this nature. We do recommend that the Board ask all owners and residents to curtail any visitors to their respective units to try to protect everyone at the property. On this topic, the Board should consider options for non-contact delivery for parcels and food to owners. Each option will be specific to each property and special consideration must be given to options for people that are under mandatory self-isolation.

Q4: Should we add anything to the Status Certificate?

A4: It may be prudent for the Corporation to add a comment to any Status Certificate being issued at this time to indicate that there may be additional unanticipated costs as a result of the COVID-19 crisis which could affect the budget and/or the common expenses payable by each owner. Please speak to your lawyer for specific wording. A cover-all statement will protect the Corporation from any future claims by a recent purchaser that they were not properly advised of the financial condition of the Corporation prior to their purchase.

Q5: Should we proceed with maintenance and repair work?

A5: There is no “one size fits all” approach. This issue should be dealt with on a case by case basis with a view to all of the relevant facts and terms of any contract in place for the work. The preliminary questions are:

whether the work involves renovations that were started before April 4, 2020, in which case the work may meet the criteria established by the government to be considered “essential”; and
if not, whether the work is “strictly necessary to manage and maintain the safety, security, sanitation and essential operation” of the condominium property (emphasis added).

If the work is strictly necessary or involves renovations that started before April 4, 2020, the Corporation should ensure a procedure is in place to minimize health risks for residents. As examples, consider setting up a sanitization station near the front entrance and/or have concierge “assess” contractors attending on-site by asking the appropriate questions regarding travel and health.

If you are unsure as to whether a particular service would be considered essential/strictly necessary, contact your legal counsel.

As always, we encourage everyone to stay safe and informed by visiting any of the following websites for health and pandemic related information:

Public Health Agency of Canada:
https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

Public Health Ontario:
https://www.ontario.ca/page/2019-novel-coronavirus

Centers for Disease Control and Prevention (USA):
https://www.cdc.gov/coronavirus/2019-ncov/index.html

World Health Organization (global):
https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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