Can a Board make changes to common elements unilaterally?

R. K. writes:

Dear Paul:

Our Board wants to turn part of the green space beside our building into additional parking spaces. This beautiful landscaped area has a few picnic tables and a couple of BBQ’s enjoyed by the residents during the summer months. We have not been told of the plans and we fear that it will be done without the owners’ input. Is this not wrong?

Paul Replies:

Dear R.K:

I am sorry to hear that your Board wants to take away green space. In one word, yes, it is wrong. But there is always a But, the Board may be able to make these changes without unit owner input. Your green space is part of the common elements and the unit owners have elected the Board to manage common elements on behalf of the corporation. According to the Manitoba  Condominium Act, there are three types of changes. In one case, changes that are required by law, or are made for safety or security reasons do not need unit owners’ approval.

Changes made without notice, approval

175(1)      A condominium corporation may, if authorized by a resolution of the board, make a change without notice to the unit owners and without their approval if

(a) the change is required by an Act, regulation or municipal by-law or to give effect to an order of a court or tribunal; or

(b) in the board’s opinion, it is necessary to make the change to ensure the safety or security of persons on the property or who are using the common assets, or to prevent imminent damage to the property or common assets.

In the second instance, the Board is required to give unit owners advance written notice in order

to make any other changes. Unit owners can then call for a special meeting to review the matter

with the Board.

Notice required for all other changes

175(2)      Before making any other change, the condominium corporation must give each unit owner a written notice that

(a) describes the proposed change;

(b) contains a statement of the estimated cost of the proposed change and the source of the funds to pay for it; and

(c) describes the right of unit owners to request a special general meeting under section 114 within 30 days after receiving the notice.

The third type of change is a substantial change. In such a case, it would not only require written notice, but written consent from unit owners. While the Act is silent on what would constitute a substantial change, an example might be investing ten of thousands of dollars to install solar panels on the roof to save on energy bills with a pay back estimated in fifteen years.

Approval required for substantial change

176(1)      If the change proposed in a notice under subsection 175(2) is substantial, the change may be made only with the written consent of unit owners who hold the specified percentage of voting rights in the corporation.

Since changing green space into parking spots can hardly be considered mandated by law or done for safety or security reasons, unit owners should receive notice. Owners’ should be sure to call for a special meeting in accordance with section 114 of the Act. This is one instance when apathy could reduce the green grass of home to a few more square meters of asphalt. Good Luck!

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