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Mar 2, 2010 | Article  Bradley Chaplick

The Boiling Point: Resolving Disputes in Condominium Communities

As published in the Spring 2010 edition of CondoVoice Magazine 

Imagine the following scenario: a condominium corporation’s board of directors is meeting with the property manager for the sixth time in the last two months. On the agenda, once again, is an ongoing dispute. A seemingly simple matter has grown into a full blown conflict. The board is overwhelmed and the stress is taking its toll.

Why do rational people get into disputes? Why do disputes get so out of hand? What can boards do to diffuse them? This article examines the causes of conflict, and explains how to resolve disputes in condominium communities.

Perceiving Unfairness

A dispute is not always the result of a true difference of opinion; sometimes it is merely a perceived difference of opinion. These perceptions help explain why rational people, not just aggressive people, find themselves in disputes.

When a person feels that his or her rights are not being upheld, the perceived unfairness often causes a strong emotional reaction. It is interesting to note that most people have a much lower threshold for an unfair disadvantage than an unfair advantage. Whereas the “wronged” party will suffer acute unfairness, the “offending” party will not feel the same degree of inequity. For example, when a driver is cut off in traffic by another vehicle, he or she will have a strong emotional reaction. In contrast, if that same driver cuts off another vehicle, he or she may feel badly about it, but the feeling will not be as strong as the one that arises from being a victim.

The different thresholds for unfairness result in a gap between how the two parties perceive the same situation. This difference helps explain why rational people get into conflicts with each other.

Rights and Responsibilities

While human nature’s uneven threshold for unfairness helps to explain disputes in general, it does not explain why disputes in condominium communities in particular, seem so difficult to solve. This question is answered by the complexity of the rights and responsibilities related to condominium ownership. For example, common element balconies, patios and backyards are often mistaken for being part of the unit. The rights and responsibilities which attach to a common element balcony are very different from those that attach to a unit. Thus, residents may be honestly mistaken as to their rights and responsibilities.

These rights and responsibilities are set out in the Condominium Act, 1998, and the condominium corporation’s declaration, by-laws and rules. The less familiarity a resident has with the Act and the condominium corporation’s documents, the greater the potential for that resident to run afoul of them.

By way of example, consider a scenario where a unit owner complains that he or she is being disturbed by noise emanating from the unit above. The condominium corporation, in response to the complaint, writes to the owner of the upstairs unit, but to no avail, and the noise continues. In protest of the continuing noise, the downstairs unit owner withholds a portion of his or her common expenses, refusing to pay the arrears until the noise problem is solved. Each of these actions involves a right and a responsibility.

While the downstairs unit owner may have a right to quiet, that right does not go so far as to guarantee absolute silence. Similarly, the upstairs unit owner has a right to enjoy his or her unit so long as he or she does not unreasonably interfere with the downstairs owner’s enjoyment. Finally, the condominium corporation has a responsibility to enforce the noise rules, but also has a right to collect common expenses, regardless of a unit owner’s complaints. The likelihood of a dispute between these parties increases dramatically when they misunderstand their rights or responsibilities towards each other.

Solving Disputes

Providing the parties with the correct information about their respective rights and responsibilities will often solve such a dispute. In the above example, the property manager should not only inform the upstairs unit owner that there is a noise complaint, but also, should clarify how much noise is generally permitted. As well, the downstairs unit owner must understand that the right to be free from disturbing noise does not confer a right to silence. Finally, the property manager must explain to the downstairs unit owner that he or she has an absolute duty to pay common expenses to the condominium corporation.

The above example demonstrates how a condominium corporation’s property manager or board may be able to resolve most disputes. By clarifying the parties’ respective rights and responsibilities, they can be persuaded to change their behaviour accordingly.

However, it is more difficult to solve disputes when the parties disagree as to what has occurred. Property managers and boards of directors are ill-equipped to carry out after-the-fact investigations. This is especially true where there has been a turnover of the property manager and board positions.

To avoid the problems involved with piecing together the facts months and sometimes years later, property managers and boards of directors should strive to keep detailed records. For example, complaints should be received in writing. If a complaint is received orally, it should be confirmed in writing and recorded in detail.

The Early Consultation

Property managers ought to take pride in the fact that they are responsible for solving nearly all disputes in condominium communities. If, despite the property manager’s best efforts, the dispute cannot be resolved, the file may be turned over to the solicitors. This is a common approach, but it is not the only approach.

What if, instead, the property manager sought an early consultation with the solicitor? That is, before taking steps to resolve the matter, the property manager has the option to make a quick consultative call to the condominium corporation’s solicitors. The purpose of the call is not to hand-off the matter, but rather, to ask for some advice and to get a view as to where the parties actually stand.

Many boards and property managers avoid calling solicitors in order to save money. In my experience, the result is quite the opposite. An early consultation has the potential to save the condominium corporation thousands of dollars and countless hours of the manager’s time. Early consultations are especially important, because the best opportunity to resolve a dispute is when it first arises.

If a solution is proposed after a prolonged conflict, the aggrieved resident will be much less likely to accept it. As the matter drags on, personal differences have the potential to complicate the issues that are in dispute, making it even more difficult to reach a solution that is acceptable to all parties.

Thus, it is crucial that a dispute is handled correctly from the outset. If a resident believes that he or she is being treated fairly by the condominium corporation, then he or she will be more likely to accept a proposed solution, even if such a proposal is contrary to the resident’s original position.

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Bradley Chaplick

Bradley Chaplick Associate

B.Comm., J.D.

bchaplick@finedeo.com
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