Condo Smarts: Withdrawing owners’ votes without evidence is bad idea

Dear Tony: We are a mid-sized condo building of 55 units. Our units are mostly retired owner-occupied, as we have a very desirable location.

At our annual meeting, we routinely have at least 50 per cent or more of the owners attend. This year at our meeting, our new property manager advised five owners when they registered that they owed fees for unpaid fines and interest and they were not eligible to vote at the meeting.

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The five owners, who are long-time residents, were upset, as this was the first time they had heard of any debts on their accounts.

They asked the manager for details of the accounts. All he could advise was that the amounts were on the books from the previous management company and included no record of activities, only a receivables list showing what was owed.

Our strata council members claimed they knew of no outstanding accounts and were just as surprised. No one knew what to do. The five owners stayed at the meeting without a vote.

There must be procedures to prevent this type of situation. Could you advise how we should manage this?

BWJ, Vancouver Island

The Strata Property Act permits a strata corporation to adopt a bylaw that deems an owner ineligible to vote for three-quarters and majority-vote resolutions if the strata corporation is entitled to file a lien against a strata lot.

If an enforceable bylaw exists, the strata corporation must also send a notice at least 14 days in advance advising the owner of the amounts that are due and that, if the owner does not pay, the strata corporation is entitled to file a lien.

This sequence must be completed to deem an owner ineligible to vote. A strata corporation can only file a lien for unpaid strata fees, special levies, interest accrued on strata fees and special levies, reimbursement of the cost of work that is ordered by an authority under the act, or a strata lot’s share of a judgment against the strata corporation.

A very common error and unenforceable bylaw that is applied by strata corporations and strata managers is a generic statement that “if any money is owing,” the strata-lot owner is not eligible to vote.

Strata corporations and managers frequently place this statement on the notice package for general meetings.

If it is applied incorrectly, without proper advance notice, you can jeopardize the outcome of your general meeting and seriously prejudice an owner’s voting rights.

Fees such as bylaw fines, parking fees, damages or insurance deductibles owed by a single owner who is responsible for a claim do not qualify as lienable actions and cannot be used to prevent an owner from voting.

Every strata council and manager should routinely review all aging receivables and determine what actions should be taken to protect owners’ interests and to ensure there is a chain of evidence to support the claims.

A receivables list should also coincide with decisions of council that relate to council meetings. For example, if an owner has been fined, that is a decision only of council at a council meeting and the decision is recorded in the minutes.

Enforcing a receivables list without supporting evidence is simply a bad idea.

At the time the meeting is called to order, the authority rests with the chair to determine if the parties are eligible voters. If there is any doubt, it is always best to protect the the voting rights of the owners.

I double-checked your bylaws filed with the Land Title Registry and your strata corporation has no bylaws that relate to voting eligibility.

Every owner, regardless of the amounts owing, is eligible to vote.

Before you impose any such restrictions, check your bylaws and confirm the types of debts.

Tony Gioventu is executive director of the Condominium Home Owners Association.

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