Posted on November 1, 2009 by Chris Jaglowitz

Best of the blogosphere for October 2009

From the many blog entries that might interest condo directors, owners and managers, here are some of the best of the past month.

Click the bolded titles below to read the entries.   Enjoy!

Do you know what your association attorney thinks of you? – Have you ever stopped to think about what your lawyer thinks of your condo and its board? Find out what's on the minds of the lawyers at Donna Berger's Florida law firm.

ROCs can use written rules to encourage civility at meetings – Scott Gordon of the Florida Resident-Owned Communities Law Blog suggests that passing rules to govern members’ conduct at annual meetings may be an appropriate way to deal with declining civility and courtesy.  Hear, hear!

Use Prepaid Credit Cards for Online Purchases -- Canadian Capitalist suggests using prepaid credit cards to minimize risk when shopping online. My thought:  Condos that provide their superintendents with a corporate credit card for emergencies or purchasing supplies could use prepaid cards instead to help lessen the chance of a huge unauthorized bill and to protect against theft. These cards might also be a good gift idea.   Compare the costs and features of the most popular pre-paid cards at Million Dollar Journey's entry on Prepaid Mastercard and Visa Credit Card Comparison.

HOA Boards Often Approach Me with a Plan and a Question – The lawyers at northwestern US law firm Vial Fotheringham lament the fact that too many HOA boards enact a plan first, and then ask their lawyer “can we do this?”  Good discussion on the scope of a board's authority.

Before Buying Into a HOA or Condo Association... – What due diligence would “The Donald” conduct before buying a condo? Find out by reading this entry on the Trump University Blog.

Mold and Water Damages Often Expensive to Repair – Lisa Magill at the Florida Condo & HOA Law Blog offers practical suggestions to avoid commonly encountered mould problems when owners leave their units for prolonged periods (or for good).

Directors and Officers Coverage is Not the Same as Fidelity Coverage – Lincoln Hobbs of the Utah Condo Law Blog speaks the truth.
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Posted on October 27, 2009 by Chris Jaglowitz

"Who do you act for, Mr. Chairman?"

With autumn now underway, Annual General Meeting (“AGM”) season is upon us.  I'm often asked to chair my condominium clients’ AGMs and I look forward to meeting face-to-face with the boards, owners and managers I've worked with during the year, mostly by phone, email or letter.  

More than that, I especially enjoy being part of a meeting where members of a condominium with difficulties band together to overcome those problems and move forward as a more united community.  Those experiences are among the most personally rewarding in my line of work.

Aside from the social call, it's often useful for condos to ask their lawyer to be chair of the AGM because many directors are not comfortable with public speaking or may not know how to navigate the procedural pitfalls that may arise.   Further, having an objective person at the helm can diffuse much of the tension that typically arises and gives greater sense of confidence and fair play to everyone present, particularly if there is a hotly contested election or vote on an issue. 

Not everyone feels that way, however, and if this year is like every other year, I will probably be asked the following question at one or more of the meetings where I'm the chairperson:

“You’re the condo corporation’s lawyer and you’re paid from our common expenses, so don’t you act for us owners?”

This question typically arises after I make a ruling or statement that one or more owners don’t agree with, or if I try to move the meeting past an overly belaboured point or to skip to the next agenda item or allow another person to ask a question or make a comment.

Because this question is so common, I’ve taken a shot at giving a short answer.

Lawyers chairing a condominium’s AGM have two duties:

First: Any chairperson must ensure that the meeting is conducted in a fair, orderly and efficient manner and in accordance with the Condominium Act and the declaration and by-laws of the corporation.

Second: Lawyers performing any service for any organizational client must, according to the Law Society’s rules of professional conduct, exercise their duties in a manner that serves and protects the interests of the organization (as opposed to the interests of the property manager, board of directors or one or more unit owners, or the unit owner who asked that question in the first place).

This concept of acting "in the interests of the organization" was discussed by the Supreme Court of Canada in the case of BCE Inc. v. 1976 Debentureholders, which we wrote about and quoted relevant portions here. The case dealt with the fiduciary duty of directors of a business corporation but it is to some extent applicable to the duty of a chairperson of a condo's AGM, particularly in treating the various stakeholders fairly.

A condominium corporation, like any other organization, has a large number of interests, many of which may conflict with each other, and a number of different stakeholders, each with their own different (and often conflicting) interests.  Treating all of those interests and stakeholders fairly may seem like a difficult juggling act and it sometimes is. 

When it comes to conducting the corporation's AGM, however, the most important balance to be struck is, in my humble opinion, between facilitating a meaningful and constructive dialogue to help the community bond on the one hand, and completing the required business promptly and sending the owners home to their families on the other.

If you're a condo unit owner, make it a point to attend your AGM this year.   Your condo needs you.
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Posted on September 25, 2009 by Chris Jaglowitz

Some Q&As on condo AGMs

Q: What percentage of unit owners is required to approve a modification of the maintenance and repair obligations contained in a condominium declaration?

A: 90%, as required by section 107(2)(d) of the Condominium Act, 1998.

 

Q: If two different proxy holders show up at an annual general meeting and they each hold a proxy from the same unit owner but the proxies were signed on different dates, which proxy is valid?

A: The most recent proxy is the valid one, often because most forms of proxy contain the words: “I (We) revoke all proxies previously given.”

 

Q: Is it correct that no board member can sit more than 2 - 3 year terms? What happens next? Do they take a year off and run again the following year?

A: The Condominium Act, 1998 contains no restrictions as to the number of terms a director can serve. Some corporations’ by-laws may contain term limits, in which case the by-law may specify any additional restrictions or procedures. Term limits are not a very good idea because it is often hard to find volunteers willing to spend the time and effort to serve on the Board.

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