On November 1, 2017, substantial portions of the new Condominium Management Services Act (“CMSA”) and its General Regulation (the “General Regulation”) will come into force, bringing with them the start of highly anticipated changes to the way property management services in condominiums are regulated in Ontario.
Among the most notable of those changes is the mandatory licensing of persons and entities providing management services to condominiums.
The purpose of this article is to provide a broad overview of the mandatory licensing framework established under the CMSA and General Regulation and to assist property managers and condominium directors to understand what to expect in the application and licensing process beginning November 1st. It is not intended to provide a complete guide to the licensing process or the obligations that will be imposed upon licensees under the CMSA and General Regulation.
You can also find helpful information on this topic on the website for the Condominium Management Regulatory Authority of Ontario (the “CMRAO”), the designated administrative authority for the CMSA, at http://www.cmrao.ca/, including interactive questions and short guide to help managers understand the licensing process. Managers should refer to the above-noted website or contact CMRAO or legal counsel as applicable for any specific questions or concerns regarding their licences, applications, or obligations under the CMSA.
Mandatory Licensing in a Nutshell:
Beginning November 1, 2017, it will be against the law to provide “condominium management services” (“CMS”) for condominiums without a licence.
This means that, with the exception of certain exempt persons as prescribed under the General Regulation, no person or entity may provide the following services without a licence:
1. Collecting or holding contributions to the common expenses or other amounts levied by, or payable to, the corporation.
2. Exercising delegated powers and duties of the corporation or its board of directors, including:
i. Making payments to third parties on behalf of the corporation,
ii. Negotiating or entering into contracts on behalf of the corporation, or
iii. Supervising employees or contractors hired or engaged by the corporation.
The General Regulation sets out the following four (4) licence types for individuals and for entities providing condominium management services:
Condominium Management Provider Licence
- Licence for “condominium management providers”[i]
- Must designate a “principal condominium management provider”[ii]
- Will be responsible for ensuring that every condominium manager employed carries out his or her duties under the CMSA and General Regulation
- Licence for individual “condominium managers”[iii]
- An “entry-level” licence, as described by the CMRAO
- Must be supervised by a “supervising licensee”[iv]
- Prohibited from providing certain services[v]
- May apply for a General Licence upon completing prescribed education and experience requirements within the prescribed time frame
- Licence for individual “condominium managers”
- A “full licence”, as described by the CMRAO
- Permits licensee to provide a full range of CMS, to act as a “supervising licensee”, and as “principal condominium manager” for condominium management providers
Transitional General Licence
- Licence for individual “condominium managers”
- A “full licence”, as described by the CMRAO
- Designed for individuals with sufficient work experience, but who lack the education requirements, to apply for a General Licence
- Permits licensee to carry out the same duties as a General Licensee while completing the education requirements for a General Licence
- Only available for application until January 29, 2018[vi]
- Must complete education requirements and apply for a General Licence within three (3) years
Exemptions to the prohibition against providing CMS without a licence are set out in section 2(1) of the General Regulation and include persons providing prescribed services or working in prescribed professional capacities (e.g., a person authorized to practice law under the Law Society Act and acting pursuant to that authority in providing legal services to the Corporation).
Condominium directors and officers are exempt from obtaining a management licence, unless those individuals provide CMS in exchange for “compensation or reward or the expectation of such”, as set out in section 2(1), paragraphs 14 and 15, of the General Regulation. It therefore appears that licensing requirements do not apply to self-managed condominiums, so long there is no compensation provided (or expected) in exchange for CMS.
That said, under upcoming amendments to the Condominium Act, 1998, S.O. 1998 c. 19, condominium corporations will be prohibited from entering into agreements with a condominium manager or management provider unless that manager or provider is licensed under the CMSA. We currently expect this prohibition to take effect February 1, 2018.
Condominium corporations should therefore ensure that their existing property managers and management companies, and any property manager or management company they wish to hire in future, are appropriately licensed to provide condominium management services as of November 1, 2017 and provide satisfactory evidence of such, and that contracts with condominium property managers are in writing as required under section 48 of the CMSA.
The (Anticipated) Application and Licensing Process
Step 1: Deemed Licences
If you currently provide, and/or are in charge of an organization or entity that provides, condominium property management services and you haven’t yet turned your mind to applying for your licence(s)—don’t panic. You will not automatically become ineligible to work on November 1st.
The CMSA and General Regulation establish a graduated, transitional licensing scheme that allows condominium managers and condominium management providers to provide CMS under temporary “deemed” licences beginning on November 1st based on experience as follows:
- An individual providing CMS within ninety (90) days before November 1, who has two (2) or fewer years of demonstrated experience providing CMS within five (5) years prior to November 1, 2017 will have a Deemed Limited Licence
- An individual providing CMS within ninety (90) days before November 1, who has more than two (2) years of experience providing CMS within five (5) years prior to November 1, 2017 will have a Deemed Transitional General Licence
- An organization or entity providing CMS immediately prior to November 1, 2017 will have a Deemed Licence as a Condominium Management Provider
Individual managers with deemed limited licences as of November 1st should be aware that they will be restricted in the condominium management services they can provide, as set out in section 10(1) of the General Regulation. For example, deemed limited licensees will be required to be supervised by a transitional general licensee, and will be prohibited from performing specified tasks, such as signing status certificates.
Step 2: Submit Applications within the Required Timeline
Property managers should nevertheless act quickly to apply for their licences and should ensure they are taking steps to familiarize themselves and comply with their new statutory obligations under the CMSA and General Regulation, provisions of each of which are expected to come into effect November 1, 2017 and February 1, 2018.
Deemed limited licences expire within ninety (90) days of November 1, 2017 (i.e., after January 29, 2018), unless the deemed licensee:
a) Applies for the relevant licence; or,
b) Applies for an extension, which the registrar may grant if he or she “is of the opinion that not granting the extension would create undue hardship”.
If a deemed licensee submits the relevant licensing application(s) by January 29, 2017, or by an extended deadline if permitted by the registrar, then the individual or entity can continue to provide CMS under a deemed licence until the CMRAO grants the application or the application is refused (or, until the time expires to request a hearing following a proposed refusal).[vii]
The consequence of failing to submit an application by January 29, 2018 (or an extended deadline, if applicable for “undue hardship”) will be that the individual or entity’s deemed licence will expire, and the manager or organization or entity will be prohibited from providing CMS, presumably until a licence is applied for and granted.
The last day to apply for a Transitional General Licence is January 29, 2018 (presumably, unless the CMRAO grants an extension for “undue hardship”). After that date, it seems it will only be possible to apply for a Limited Licence or General Licence.
Accordingly, property managers with more than two (2) years of experience in the last five (5) years, but without the education requirements to apply for a General Licence, should therefore be aware that if they miss the deadline to apply for a Transitional General Licence they may, in addition to being unable to provide CMS after that date, be required to apply for a Limited Licence, which would restrict the CMS they can provide.
Further, limited licensees cannot act as supervising licensees or as principal condominium managers. For individuals operating a management company as a sole proprietor or without another individual that qualifies for and obtains a Transitional General Licence or General Licence, this means that it may not be possible to obtain the required licence for the management company.
Since it is not clear what might qualify as “undue hardship”, we suggest that all property managers and property management companies be prepared to submit their applications before the January 29, 2018 deadline. If it may not possible to do so for any reason, managers should reach out to the CMRAO for direction as soon as possible.
The General Regulation provides that the Minister of Government and Consumer Services may set education and examination requirements for applicants for a Limited or General Licence or for licence renewals, as well as for principal condominium managers.
As of today, the Minister has only designated the education requirements required to obtain a General Licence, which include:
- For applicants with less than five (5) years’ experience providing CMS prior to November 1, 2017, the following courses developed by the Association of Condominium Managers of Ontario (“ACMO”)
- Condominium Law
- Physical Building Management
- Financial Planning for Condominium Managers; and,
- Condominium Administration and Human Relations.
- For applicants with five (5) years’ or more experience providing CMS prior to November 1, 2017:
- The courses noted above; or,
- Instead of the above-noted courses, successful completion of the applicable challenge examinations developed by ACMO.
The above-noted courses can be provided through colleges of applied arts and technology established under the Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, Sched. F or by any condominium management provider authorized by ACMO to offer the above-noted courses to its employees. The relevant challenge examinations are to be provided by ACMO.
Section 11(2) of the General Regulation provides that condominium managers with more than two (2) years’ experience providing CMS within five (5) years prior to November 1, 2017 (i.e., applicants holding a Deemed Transitional General Licence on that date) who have, prior to November 1st, successfully completed ACMO’s Registered Condominium Manager examination or the above-noted four courses or challenge examinations, are automatically eligible to apply for a General Licence.
Managers who have not completed the above-noted four courses, challenge examinations, or Registered Condominium Manager exam prior to November 1, 2017 will be required to apply for either a Transitional General Licence (if more than two (2) years of experience within five (5) years prior to November 1st) or a Limited Licence (if two (2) or fewer years of experience).
The General Regulation further provides that prior successful completion of educational or training programs, examinations, or prior work experience may be recognized as “equivalents” for the purpose of fulfilling designated education and examination requirements to obtain a Limited or General Licence. However, we do not yet know what type or extent of education, examination requirements, or prior work experience might be sufficient to be recognized as an “equivalent”, should the CMRAO be considering equivalents at all at this time.
We therefore suggest that individual managers who have not completed the above-noted education requirements prior to November 1, 2017 be prepared to do so under a Limited or Transitional General Licence prior to applying for a General Licence, unless further direction is received from the CMRAO regarding what might be recognized as “equivalents”.
As a final note on education, managers and condominium directors should be aware that managers, like lawyers for example, may be subject to continuing education requirements in order to renew their licences going forward.
(Likely) Contents of the Application
The CMRAO website notes in its discussion on “Applying for a Licence” that applications can be submitted online through its website beginning November 1, 2017.
While we do not yet know what the application forms will look like, we expect that individual managers should be prepared to provide the following, among other requested items:
- Complete legal name and name in which the applicant is applying to be licensed;
- Evidence of prior work experience providing CMS prior to making the application, such as that set out in section 11(4) of the General Regulation (including, among other experience, planning and participating in board and owners’ meetings, and participating in budget preparation);
- Evidence of completion of educational and examination requirements (or, if available and requested, equivalent education and experience);
- Police records check dated within six (6) months prior to the application date;
- In the case of an application for a condominium management provider licence, designation of the principal condominium manager; and,
- Evidence of the applicant’s (or, that of a person with beneficial interest, control, or financing involvement in the applicant’s activities) financial position and past or present conduct; and,
- Payment of the relevant fee (as set out on the CMRAO website).
Whatever the form of application, applicants should ensure that all requested information is included and that all questions are answered fully and accurately, and must pay the required fee, to avoid having their applications refused.
Finally, while it is outside the scope of this article to discuss the statutory obligations to which condominium managers and management providers will be subject under the new CMSA and General Regulation (e.g., record keeping and reporting, continuing education requirements, etc.), condominium directors and managers should expect busy times ahead as managers and management companies adjust to these obligations, in addition to completing the requirements to obtain a licence, which may lead to increased costs of providing condominium property management services.
© Deacon, Spears, Fedson + Montizambert, 2017. All rights reserved.
[i] The CMSA defines “condominium management provider” as “a corporation, partnership, sole proprietor, association or other organization or entity that, on behalf of others and for compensation or reward or the expectation of such, provides condominium management services or holds himself, herself or itself out as such”.
[ii] A “principal condominium manager” must hold a general licence, deemed transitional general licence, or a transitional general licence, and must have completed educational and examination requirements for a principal condominium manager specified under the Regulation. In the case of a sole proprietor, the sole proprietorship must make sure that the sole proprietor meets the requirements to qualify as a principal condominium manager, and must designate the sole proprietor as such. The duties of a principal condominium manager are to ensure that the condominium management provider complies with the CMSA and General Regulation.
[iii] A “condominium manager” is an individual who meets the qualifications to obtain one of the licences described above and who provides condominium management services to a condominium corporation (a “client”) on behalf of a condominium management provider or directly.
[iv] The General Regulation defines “supervising licensee” as a “general licensee, a transitional general licensee, or a deemed transitional licensee who supervises a limited licensee or a deemed limited licensee”.
[v] Limited licensees and deemed limited licensees are subject to conditions and restrictions in the services they can provide, as set out in sections 8 and 10 of the General Regulation, respectively. For example, limited licensees are prohibited from signing status certificates and from making expenditures, investments or dispositions of condominium corporation reserve funds. Individuals applying for limited licences should consult the CMSA and General Regulation, and legal counsel as required, to ensure they understand the limitations on the scope of services they are permitted to provide as a limited licensee or deemed limited licensee.
[vi] As noted in the “Glossary” on the CMRAO website, applications for transitional general licences will not be accepted after January 29, 2018. This is because applicants for a Transitional General Licence must hold a Deemed Transitional General Licence, which expires ninety (90) days after November 1, 2017 unless the licensee applies for a transitional general license or general licence during that time or the registrar grants an extension for “undue hardship”.
[vii] NOTE on Refusal of Applications:
Depending on the reason for the refusal, the CMSA provides that an application may be refused (a) without a hearing; or (b) with an opportunity for a hearing.
If an applicant does not meet “prescribed requirements” for the licence applied for, as set out in the General Regulation, the application may be denied without a hearing. For example, condominium management providers must meet the prescribed requirements with respect to content (e.g. including a police records check dated within six (6) months prior to the application) and form, paying the relevant fee(s), and having designated a principal condominium manager. If a condominium management provider intends to carry on business from a dwelling, the applicant must also make arrangements to provide the registrar with access to its business records as required. Individual managers must also meet prescribed requirements for the relevant licence for which they are applying, including, among other things, holding the required pre-requisite licence or deemed licence, if any, and completion of specified education and examination requirements, if any.
An application can also be refused on grounds which could be described as “good character” requirements, which are set out in section 37 of the CMSA. For example, an application can be refused on grounds that: the applicant cannot be reasonably expected to be financially responsible, the applicant makes false statements on the application, or if there are grounds to believe the applicant will not act honestly, legally, or with integrity. An applicant whose application is refused on these grounds is entitled to request a hearing at the Licence Appeal Tribunal (or to whatever other tribunal may be prescribed) within fifteen (15) days of being served with the notice of proposed refusal.