Hot Issue Requires Cool Heads

Written by Shlomo Sharon | 20 October 2001

The Toronto Star − Condo Living Section
Condo Living sent the following question to Shlomo Sharon, President, Taft Forward Property Management Group

Follow Process To Resolve Air Concerns

Question

The condo I recently bought includes central air conditioning in the monthly condo fees.

However, the air conditioning really only takes the humidity out of the air - it does not cool the air or does so at very minimal level. The Board of Directors and the management recognize there is a problem but nothing has been done about it. There are documented complaints from the past 3 summers and some residents indicate this has been a problem for much longer. Some complain about the heating as well, however I don't have the first-hand experience with that.

What can individual owners do? Do we have an legal rights? Can we withhold our condo fees or a portion of them, until this is repaired? Can we install our own window air conditioners?

Answer

To answer your question, you will need to determine the following:

What is wrong with the air conditioning system? Is it the system itself? Are some vents blocked? Does each unit individually control the level of air conditioning, and if so, is the thermostat the problem?

Before any major steps are taken it is advisable to have objective, professional information as to what the problem is.

Whenever there is a repair or maintenance problem, the first step is to look at the Condominium Act and the Condominium documents, including the Declaration to find out who is responsible to maintain and repair the air conditioning. The obligation to maintain some portions of the air conditioning system may belong to the Corporation while other parts of the system may be required to be maintained and repaired by the owners.

Good communication is the key for any successful relationship when you live in a condominium. There are a few steps that you can take to try and deal with this problem.

First, find out when the next meeting of the Board Of Directors is scheduled and ask to meet with all of them to discuss the air conditioning and heating concerns in the building. Your Property Management Company representative should also be present at this meeting.

Second, at the meeting, detail the issues of your concerns and leave a written copy with each member of the Board Of Directors and the Property Manager. Ask them to give you a written reply by a specific date.

If no reply is forthcoming, the Condominium Act allows you to call for an owners' meeting to discuss the matter. In order to call this meeting, you will require at least 15% of the unit owners to sign a requisition form.

If no resolution is achieved at the meeting or as an alternative in situations where you feel that the directors are clearly not fulfilling their duties, you may requisition a meeting of owners to remove the members of the board of directors. To successfully remove each director you will need a majority of unit owners to vote in favour of removal at the meeting.

If you don't want to take steps to remove the directors, in certain circumstances the Condominium Act allows a unit owner to go to court for an order enforcing compliance with any provision of the Act, declaration, by-laws or rules.

The Act requires, however, that many disputes be submitted to mediation and arbitration. You should consult a condominium lawyer before taking these steps.

Assuming the corporation is responsible for fixing the air conditioning and heating systems, the nature of the problem will determine if reserve funds can be used for that purpose. The Act requires that the reserve fund be used solely for the purpose of major repair and replacement of the common elements and assets of the corporation.

Regardless of the problem, you should never withhold condominium fees. You are not allowed to vote at any owners meetings if you are in arrears of common expenses. You also risk having a common expense lien registered against your unit.

With respect to your question about installing your own window air conditioner, installing such a unit would be considered an alteration to the common elements. The Condominium Act sets out procedures and requirements for owners wishing to make changes to the common elements which include the board's consent and perhaps notice to the owners and a meeting depending on the nature of the change.