The Blog

MENTAL HEALTH DISORDERS IN CONDOS : How condo boards and property managers can cope with this growing issue

This is a topic that most fear talking about, but in my personal opinion and like many, I think it’s one that needs to have a voice in the condominium industry. Mental Health disorders are now reported to be the leading cause of non-fatal illness not only in Canada, but worldwide. What is mental health? Generally, this includes our emotional, psychological and social well-being. It affects how we think, feel, and act. It also helps determine how we handle stress, relate to others, and make choices. Mental Health is important at every stage of life from childhood and adolescence through adulthood.

The affliction does affect young people, but it is more common among the older generations. Calgary has seen its aging population begin downsizing from the single-family homes to condo
communities. And with this comes increased risks for mental health disorders in multi-family setting. Condo boards and management companies will find that they will have to address mental health disabilities and psychological disorders among their condo residents as part of there daily tasks.

I understand that most managers are not trained and/or equipped in the area of dealing with mental health issues, but as managers, I think its important to understand and know how to address concerns with individuals facing mental health disorders

So what do you do as a condo manager or a board member and how can you help address the issue when it comes up?

Condo boards and mangers like New Concept Management Inc., should be proactive. Start with the least intrusive, least costly, and least heavy-handed measurers and work from there. I hear so many horror stories of condo managers and or board members who lack compassion. Well, I’m here to tell you that it simply doesn’t need to be that way. The old adage is true- you can
catch more flies with honey than vinegar. Being nice to nice people is great, but being nice to those who are not nice to you or have a hard time with basic communication skills is how the world becomes better. Here are some suggestions that may help go along way.
1. Be supportive — it doesn’t hurt or cost anyone to show some compassion towards one another. Kindness goes a long way even in the toughest of situations. Trust me, I know, it’s not always easy being a condo manager and I face a lot of challenges in my industry. In fact, I’m thinking about writing a book.
2. If someone has disclosed that they have a mental health issue. See how you and the board can accommodate their request. Every condominium in Alberta has a duty to accommodate an owner with a disorder, whether it is a physical or mental one up to the point of undue hardship and upon request. The obligation is set out in the Human Rights Code (the “Code”). The assessment of undue hardship is usually limited to considerations of any significant financial impairment to the condominium or health and safety concerns, but on rare occasions the courts have considered the
effect on the other residents.
3. Gather as much information as possible regarding the nature of the disability and the request for accommodation from the owner, caregiver or family member.
4. It goes without saying, but keep the information confidential. It should never be disclosed to outside sources like residents or other owners. It’s also as important to keep all communications regarding the request on file and not delay responding to the request for accommodation.
5. Most importantly, act in good faith in reviewing the request for accommodation and accept it unless there is legitimate reason for denial. You may want to seek legal council and or review the Human Rights Code.
6. Boards are infamous for setting policies and procedures that govern their condo. Why not set a policy on how you as a management company and board shouldrespond to requests for accommodations that deal with Mental Health Disorders or any Disability. I know we at New Concept Management Inc.; are in the process of developing polices to accommodate mental health disorders

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CONFLICT RESOLUTION : What best to do to ensure peaceful resolution to condo disputes

Question : Maria, My condo board is involved in a number of ongoing disputes with owners that have dragged on for months and have cost the corporation a small fortune in legal fees. Now other owners are taking sides, and I’m worried about the discord this is causing. How can we get these disagreements settled?

Unresolved disputes are not only costly, they also take a huge toll on the people involved in them. They can turn one group of owners against another, discourage people from serving on the board, and reduce the quality of life in a condo community. In its recent review of the condo industry, Service Alberta has identified the urgent need for a condo dispute resolution tribunal as one of its priorities. Until the new tribunal is in place, though, most disputes that are not resolved by the parties themselves must settled by the Court of Queen’s Bench, which is a time-consuming, and expensive process.

The current situation could be much improved by the creation of a new condo tribunal that can make decisions about condo disputes quickly and inexpensively. However, even without a condo tribunal, there are many steps that condo owners, boards, and condo managers can take to reduce the risk of conflict and to resolve disagreements on their own.

For instance, it’s important that the rules of your complex are clear and everyone is aware of them. Ensure your bylaws are up to date and written in understandablelanguage. Develop written rules to address common issues, like parking and the use of common elements. Make all relevant information readily accessible to owners, preferably on a secure owners’ website. When everyone
has the same information, misunderstandings are less likely to arise.

Another important factor in preventing disputes is board education. Condo board members often manage assets worth millions of dollars and sometimes have to deal with complicated issues, yet many have no training in board governance or dispute resolution. All condo corporations need a board development plan to orient and educate board members and ensure regular turnover of
the board. As the board is ultimately accountable to the owners, it is also important to keep the lines of communication open between the board and owners,and not funnel all communications through the condo manager.

Even these measures can’t prevent all disagreements, of course, so it’s important to respect differences of opinion when they do arise and to try to understand them. If we dig deep enough into the reasons for a dispute, it may be possible to find “win-win” solutions that everyone can live with. This approach to settling disagreements is called “collaborative” or “interest-based”
dispute resolution. It encourages the participants to work together to attack the problem, instead of attacking each other. It also helps preserve relationships, which is an important benefit
when the dispute is between condo owners who are neighbours and co-owners of the common property. In contrast, traditional legal means of resolving disputes are “adversarial”, pitting the participants against each other to advocate for their own position and against the other’s. Adversarial dispute resolution requires the parties to argue their case in front of a decision-maker who decides who has the stronger argument — a “win-lose” situation. There is not much room for compromise, collaboration, or exploration of each party’s needs and wants. For this reason, adversarial ways of resolving disputes are not a good option in situations where the parties have an ongoing relationship, as they do in most condominium cases.

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CANNABIS LEGISLATION AND YOUR CONDO : The impending legalization of cannabis may present problems for condos

QUESTION : Dear Maria; What can you tell us about the legalization of cannabis and how does it effect the condominium industry?

ANSWER :This is a fairly new topic for everyone and as we learn more about this it seems pretty straightforward on how Condominium Managers in the industry should approach the issue.

To give us more insight on this topic, I reach out to the experts in the industry and here’s what David Cumming, Associate in the Condominium Law Group at McLeod Law LLP, has to say about the
legal use of cannabis in condominiums. The new cannabis legislation in Canada will come into effect on July 1, 2018. As part of this law, not only will possession and consumption be legal, but also individuals will be allowed to grow up to four plants in their personal residence.

There have been questions raised within the condominium industry as to the implications the new legislation will have on condominiums. The new legislation raises concern as to whether challenges could arise under the Alberta Human Rights Act for condominiums that have Bylaws preventing people from smoking marijuana in their units.

THE FIRST QUESTION TO ASK IS: WHY IS THIS AN ISSUE?
The issue with marijuana in condominiums is not the effects of the drug per se, but the smoke and smell associated with it. It causes a nuisance to other owners. Marijuana grow-operations pose similar problems. As David Cummings has heard from “sources”, plants can create a significant odour when they are budding. Lastly, cultivators often create a hot and humid environment to encourage fast growth, leading to concern of mold development and increased utility bills.

Despite these concerns, we don’t anticipate Condominium Corporations will have serious issues. Here are the reasons why. To prevent growing and smoking of marijuana in a unit, Condominium
Corporations will no longer be able to rely on the prohibition found in most Bylaws against doing something illegal in a unit but there are other Bylaw provisions that can be relied upon.
Many Condominium Bylaws, however, still prohibit individuals from smoking in their units or on common property. This applies to marijuana in the same way it does tobacco. For condominiums with a smoking prohibition that want to prohibit tobacco but allow marijuana, or vice versa

THE OTHER CONCERN IS THE POSSIBILITY OF GROWING MARIJUANA PLANTS WITHIN A UNIT, ONCE LEGAL TO DO SO.

would have to have their Bylaws amended to reflect this. For all other condominiums, it is open to them to prohibit all kinds of smoking entirely.

The other concern is the possibility of growing marijuana plants within a unit, once legal to do so. MacLeod Law’s first recommendation is to amend the Bylaws toprohibit unit owners from growing marijuana plants.

McLeod Laws — Condominium Law Group, includes a provision in Bylaws that prohibits the growing of marijuana plants. However, even Bylaws that do not have this provision have other sections, which can be relied upon.

The most applicable provision is the prohibition commonly found in Bylaws against an occupant doing anything, which would void the insurance of the Corporation or increase premiums. It is common language in condominium insurance policies that coverage is void if you have a grow operation, and there is no reason to believe this will change with the passing of the new law. Hence Corporations will still be able to use this provision to stop residents from growing marijuana plants.

The other issue that is often raised is that of Human Rights. The use of marijuana to treat medical conditions is on the rise and will continue to increase once recreational use is legalized. As such, an attempt by a Condominium Corporation to stop a resident from smoking marijuana could be challenged under the Human Rights Act as discrimination on the grounds of disability.

Medicinal marijuana has been used for quite some time, but as far as David Cummings is aware, there have been no cases in which the right of the resident to smoke marijuana in their unit has been brought before the Courts. When and if a challenge is brought, it is doubtful that that a Human Rights Tribunal would force the condominium corporation to allow smoking in the unit.

The first reason is that there is nocompelling reason why a resident who requires marijuana for medical purposes cannot smoke off premises.

A case was brought by an individual in British Columbia relating to tobacco smoking, in this case, the occupant brought a Human Rights complaint against the enforcement of a Bylaw prohibiting smoking. She argued that she was being discriminated against as an addicted smoker (addiction is considered a disability). The decision, upheld by the Court, was that there was no discrimination because there was nothing stopping the owner from smoking outside her unit in the designated areas. A similar reasoning could apply to marijuana smoking.

Secondly, and more significantly, we now have the advent of vaping devices wherein marijuana products are consumed resulting in much less combustion and hence, a negligible amount of
smoke and smell. There are also a number of edible projects available. Hence if a Condominium Corporation makes it clear that they are willing to allow an occupant to consume marijuana in this way, a Tribunal would likely find that not only can a unit owner consume marijuana, but they can also consume it in any manner they choose, despite a completely satisfactory alternative does not create a nuisance to other occupants.

If a challenge is brought to court for growing plants under the Alberta Human Rights Act, it is unlikely that a Tribunal or Court would find that the occupant suffered undue hardship because they were compelled to buy their product from a dispensary rather than grow it themselves.

In summary, although it is difficult to predict what sort of growing pains society and condominiums, in particular, might have as a result of the changes in the law, I do not think it presents any significant legal difficulties for condominium owners and their Boards.

Boards would be prudent to examine the Bylaws and make sure that they properly reflect the choices of the community now that the prohibition against doing anything illegal in one unit will not apply to smoking or growing marijuana.

If an issue does arise, Boards should feel confident in enforcing their “no smoking” Bylaws, and if challenged under Human Rights, Boards should propose edibles and vaping as alternate modes of consumption. Thank you David Cumming, Associate with McLeod Law, for your informative insights into the legalization of cannabis and how it relates to the condominium industry.

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