What Are Bylaws for a Condo?
Condo bylaws are essentially the operating rules for a condominium organization. They might also be called the "general regulations" or "general bylaws" in some condominium corporations. In Alberta, condo bylaws are found in Part 3 of the Condominium Property Act and its regulations. As a legal document, the condominium bylaws are part of the materials that regulate how a condominium community will be governed. Generally the bylaws give the framework around how the condominium corporation is formed , how meetings are structured, how finances are managed and how decisions are made. The condo bylaws will include:
The purpose behind having condo bylaws is to have a set of rules that are fair, complete and relevant so that the rights and obligations of the parties can be clearly identified without unnecessary conflict. The whole point of condo bylaws is to create order and harmony within a community.
The Legal Standing of Bylaws in a Condo
Condo bylaws, like any other legally enforceable document, must comply with applicable law. This means that if they are inconsistent with state or federal statutes or regulations, the condo bylaws take a back seat. However, the inconsistencies must be explicit to trigger such an outcome, and that is not the case most of the time.
By way of illustration, consider the example of a condo association that charges dogs as pets and restricts dogs to no more than two in a single unit. Those provisions would almost certainly not be found to be inconsistent with the law or found to be otherwise unenforceable. The point here is that condo bylaws are not easily set aside by a determination that they are inconsistent with an overriding law.
While it is true that state statutes and regulations governing registered condos provide some guidance with regard to the legal parameters for the bylaws and can dictate certain provisions (e.g., minimum percentages for approval of Special Assessments), the majority of legal decisions interpreting condo bylaws look to the plain meaning of the expressed terms of the bylaws for that particular condo association. Without going into historical details, the law governing condos evolved from ancient English laws that allowed property owners to collectively maintain and repair their property. It stands to reason, therefore, that where a collective property interest exists, the members would have a shared responsibility for that common interest. While the power and authority of the members to collectively maintain property is well entrenched in law, the specifics of how that power is exercised by the members are determined by the individual bylaws of that particular association.
Condo bylaws are an enforceable Agreement. They bind both the association and the individual members. For the members, this means that they must abide by the terms in the bylaws of their condo. Assuming the bylaws conform to law, a failure to abide by them could result in an action against the member to enforce their performance in accordance with the bylaws. The association is similarly bound by the terms of the bylaws. Since the members are deemed to be members of the association they elect, the bylaws of their particular condo are equally binding on the association itself.
In concept, the condo bylaws set up a legal contract between the members and the association. Condo owners should understand that when they purchase a condo, they are purchasing a property interest and contract, and are, therefore, subject to the terms of the Bylaws Agreement. The Court will typically enforce those terms literally. Condominium rules, therefore, represent a legal contract.
How Are Condo Bylaws Created and Approved?
Condos are formed by a combination of state law, local land use ordinances and the agreement of the founders themselves. This means that a subdivision is the result of some state statute, combined with a local zoning ordinance followed by the action of a local planning board and the landowner who has purchased the parcel of land. This same process produces a condo project just as it would have produced a conventional subdivision in the absence of condo legislation. So, in the view of a state agency, the creation of the condo project is not unlike the traditional subdivision.
The process to create a condo is governed by state law. Every state has a condo statute which sets out the steps for creating a condo project. Since the creation of a condo occurs at the state level, state law governs the creation process. Even though there is no local zoning ordinance authorizing the condo project, the fact that state law creates the condo means that local land use boards don’t have jurisdiction over the creation of the condo project itself and therefore cannot insert additional requirements or terms into the formation process.
To amend the declaration to create new or revised restricted use areas, or "Common Elements", or to create new or additional voting or economic interests in the association, or to add new units to the project requires a different process.
To create or amend restricted use areas, Common Elements, or to create new or additional voting or economic interests requires an Association vote. In addition, in some cases, approval by mortgagees is required prior to adopting the amendments. The approval requirements vary depending upon the nature of the amendment to be adopted, the type of condo involved and the extent to which the amendment detracts from the rights of the unit owner or the economic security of the mortgagee.
If the amendment does not decrease the economic security of any mortgagee, either because it will not materially affect the value of the security or because the mortgagee accepts the amendment, only the vote or approval of the association is required. A vote of only those units that are similarly affected is required if the amendment will materially affect only a portion of the associations’ unit owners, or only certain units in the project.
Enforcing Bylaws in a Condo
Condo boards are charged with the responsibility to enforce the rules and regulations laid out in the bylaws. However, the board can only enforce these laws if the rules are clearly defined. For example, if a bylaw was never written down, or is poorly defined, there may be loopholes that come into play when it’s time to enforce the law. A clearly defined law leaves no wiggle room for interpretation and cheating.
The condo board enforces the bylaws in several ways. First, board members are expected to set a precedent for following the rules. This involves both doing what they preach and effectively communicating any infractions to other residents who may need to take action. Some condo boards delegate this task to the property manager.
The board also holds the power to levy penalties for transgressions while having the right to impose different penalties on different units. Furthermore, the board can choose to not enforce a rule or to impose penalties, since enforcements of the majority of the rules leave some degree of discretion to the board. For example, the board can choose warning letters before imposing fines or other penalties.
If a board chooses not to enforce, this doesn’t mean that they’re breaking the law. Sometimes the rules are more annoying than useful. If a board chooses not to enforce a rule, they may be doing you a favour. For example, rules against non-firing fireworks may not be enforced too strictly on Canada Day, New Year’s Eve, Victoria Day, and other special occasions.
A more severe remedy for transgressions involves civil actions brought against the unit owner. Many bylaws have wording that prevents a unit owner from committing an act that would create nuisance. If a unit owner does so, the board may take them to civil court. In cases where the lawsuit is for a significant sum of money, the unit owner may need to hire their own lawyer to respond.
Keep in mind that the condo board cannot take a unit owner to criminal court. Where the infraction has violated a law outside of the enforcement of condo bylaws, the board can notify the relevant authority.
Altering Condo Bylaws
In the majority of cases, condo bylaws can be amended by a vote of the owners. Many condominium corporations have specific provisions in their bylaw amendment clauses to address a variety of matters. In most jurisdictions, obtaining a 2/3 or 3/4 majority vote of owners is required. In some jurisdictions, specific pieces of legislation may require a higher percentage of owners to vote in favour of the amendment. An important aspect of the amendment process is calling a meeting to consider the matter. Notice of this meeting must be provided to owners and the general public (i.e. targeted to individuals other than owners, such as tenants) to facilitate attendance. Notice of the meeting must follow the guidelines set out in the bylaws, and applicable legislation , and should also include certain additional information about the bylaw changes being proposed.
If a owner, tenant or unit occupant challenges the validity of bylaws, the alteration may be declared invalid by the court. However, the general disposition of the court in all provinces is to uphold the validity of bylaws in accordance with the process for change being followed. This will become less important as more and more low rise properties are legislated to use the reduced voting requirements for amendment purposes.
Amendments to existing bylaws do not apply to a particular owner or category of owner on a discriminatory basis unless it was intended and there is no pre-existing right in the bylaws to discriminate for a proper purpose.
Settling Disputes and Litigation
It is not unusual for disputes to arise due to what some owners feel is an unfair or unreasonable application of a condo’s bylaws. An example of this might be a restriction on pet ownership. A pet owner may believe that their beloved cat or dog, with its muted bark or soft meow, cannot possibly create any disturbance. However, just as often does the situation reflect a noisy dog or cat.
Fighting back against the condo association requires an understanding of the bylaws and how they impact an owner’s rights. Fighting back with a "do it my way or else" attitude proves more counterproductive than productive. Unfortunately, there are too many cases where a so-called victimized owner feels they endured everything for way too long or were forced by circumstances to accept a situation they should have done something about years ago.
Disputes may arise over:
● Your general homeowner rights versus the specific limitations in the bylaws
● Disagreements among owners
● Wording, interpretation, or application of the bylaws by the board
● Conduct of an individual owner
In recognizing through the study of the bylaws that you’re most likely the one who has repeatedly been in violation of a specific rule, you may want to confront other owners over their same infractions. However, you need to be cautious of this tactic, because it’s not so much a group complaint against the condo association that the courts are interested in as much as the owner’s individual complaint against his or her association.
Although frequently taken on by the association itself, judges and courts refuse to enforce the bylaws against a specific owner if another owner isn’t in violation, too. Through this strong stance of the legal system, a self-policing system is encouraged, because if one owner and another are breaking rules or living outside restrictions, the enforcement of the bylaws should be left to the association. The moral of the story is: Don’t become a convenient test case for the association.
To a lesser extent, disputes arise over who can serve on the board. While this may be an issue only a few owners care about, if the association allows too many current board members to retain these seats through election after election, the issue could become one of interest for owners not even involved in the election and those who have long ago accepted the bylaws as written.
Owners have the right to enact lawsuits over what they see as violations of the bylaws. If the association or board engages in regularly breaking the rules yet again and accepting this type of behavior, the association or board not only violates its own bylaws, but also encourages other owners to do the same. When the bylaws are essentially ignored by the board, the rights of the individual owners are violated.
The individual owner may have a cause of action against board members when, despite the board’s negligence, one or more of its members and even the association itself are supported by too many owners who have chosen to not participate in meetings. Unless owners attend meetings and make their voices heard, the association is essentially killing itself with apathy.
What are a few of the other possible areas of rights violations?
● If an association allows an owner who has violated the bylaws to keep his or her unit, it must likewise extend the same privilege to other owners.
● If a board member violates the bylaws, it must do so with the knowledge of the other board members. Silence in such cases will show consent under the principle of acquiescence and an agreement to the unlawful act.
● If an owner violates the bylaws, the board or another owner must not take any action against the owner unless they take the same measure against other religions of the community. Otherwise, it starts to look like selective enforcement, which is discouraged by the law.
● If the board has violated the bylaws, the owner agrees with the act more than he goes along on purpose. In such instances, he may also have a cause of action against the association for waiver or estoppel or even a breach of the duty of good faith and fair dealing.
Here is where it gets a little sticky, because there are two kinds of enforcement by owners: one in good faith and one in bad faith. Bad faith enforcement actions enable the association to recover from the offender. With good faith enforcement actions, the association or the board is able to recover from itself for damages to the owner. Reasonable enforcement of the bylaws shows good faith on the part of the association and increases the strength of the entire community. No matter how small a crime, even in the name of self-policing or other groups within the association, no one should be free to make their own laws.
Effects of Bylaws on a Condo Owner
Legally binding condo bylaws govern common areas, the behavior of the residents, and use of individual units. For example, a condominium’s bylaws might spell out your right to have a pet in your unit, or be the basis for an association’s ban on BBQing on the common grounds.
What about the association’s right to retroactively enforce a restriction? (Enforcement is when a rule is applied to a unit, restricting its rights or privileges). If you have violated an association’s rules and the association is seeking to enforce the provision after many other owners have violated it, the association may be unable to enforce that provision, even if it is spelled out in the bylaws.
Some provisions, called "waivable" provisions, are enforceable because they are allowed by law and not contrary to public policy. Other provisions, called "unenforceable," are invalid because they are prohibited by law or contrary to public policy.
The ability to enforce an unenforceable provision usually depends on the facts of a case. Courts typically look to the circumstances surrounding a violation when determining whether the association can enforce the provision.
For example, if the association has never enforced a parking restriction, it might be deemed that the violation is not severe enough to warrant enforcement of the restriction. But if the restriction is constantly violated and vehicles are blocking the fire lanes, the restriction will likely be enforced.
Provisions in condo bylaws that are legally binding fall in either the waiver category, or the unenforceable category. You must understand your rights and responsibilities as an owner within the context of the bylaws and rules.
Condo Bylaws are Distinct From Other Governing Documents
Condo bylaws are often referred to as constitutions of condominium associations. They hold significant legal weight, setting forth the fundamental governing principles. However, they are not the only governing documents.
Other governing documents are typically CC&Rs (Covenants, Conditions, and Restrictions) and rules and regulations, though they may have different names. CC&Rs provide a detailed description of the declarant’s rights to use the property and how it may be changed. Essentially, the CC&Rs describe what type of property is being sold, how it is to be handled, how common areas will be managed, the duties of the association, and other regulations. They also describe the association’s assessment powers, the type of assessments and special assessments, and the process for modifying or deleting CC&Rs or bylaws.
In summary, CC&Rs lay out the owner’s rights and restrictions in great detail. Since developers draft CC&Rs, they typically include provisions favorable to the developer to ensure that their financial interest is protected .
On the other hand, rules and regulations are generally subject to more frequent and less formal changes. Most association boards adopt the rules and regulations, and a large percentage of the time, the rules and regulations are passed without a vote. Practically speaking, if you break the rules and regulations, the association may fine you, or suspend your right to use the common areas.
Most condominium associations typically have additional governance provisions in their Articles of Incorporation. Articles of Incorporation govern the relationship between the owner and the corporation. While records are technical, generally, the articles address overall association affairs including the number of directors and officers, their powers, and their terms of office. Alteration of the articles requires member approval.
The bylaws provide the procedure for calling a meeting, voting, and other related roles in association. The governing documents all work together and are legally binding on owners and the association.