Picture
Picture
Name and Title
Warren Kleiner
Partner
Partner
Year of Call

2000 (Ontario)

Memberships
  • Member, Canadian Condominium Institute, Toronto Chapter
  • Member, Association of Condominium Managers of Ontario
Publications
Description

Warren Kleiner Head Shot

Emails between condo board members are not part of the official record, but directors still have to be very careful about what they write in these online messages, says Toronto condominium lawyer Warren Kleiner.

Kleiner, a partner with Shibley Righton LLP, cites a recent Condominium Authority Tribunal (CAT) decision, where a unit owner wanted to see online messages between board members about the approval of a gas contract after the minutes of an official board meeting stated it “has already been approved by the board via email.”

In its defence, the board stated the “mere mention of emails within the minutes does not make these emails a record of the corporation,” tribunal documents state, and an “agreement to agree” in electronic correspondence is not important since formal approval of the gas contract renewal was given at a regular board meeting.

The CAT sided with the board, ruling the “emails, whether they existed or not, are not records that the [unit owner] is entitled to under the Act.”

“This is a very interesting case, as many people might have thought that if you refer to emails between board members in the minutes, a board would be required to produce those messages,” Kleiner says.

He tells AdvocateDaily.com that s. 55 of the Condominium Act states that “The corporation shall keep adequate records, including the following records...” before going on to list 12 examples, such as financial records and a minute book of formal board meetings.

“It’s not meant to be an exhaustive list, but just examples of records that have to be kept by condo boards,” Kleiner says. “There could be other things that are considered records.”

He says the tribunal’s decision makes sense, considering that condo directors often exchange emails before meetings on various subjects, which people would generally not expect to form part of the corporation’s records.

Though these types of emails have now been deemed to not be part of the official record for condo boards by the CAT, Kleiner advises directors to be circumspect about what they write in their private messages.

“There could be circumstances where those informal emails between directors are forwarded to another person,” he says. “Some board members may say things that could be perceived as an insult towards a unit owner, or they may express views they would not want to be made public.”

Once they are circulated, these emails could also be used in various legal proceedings that may arise in the future, Kleiner says.

“It’s very important to understand that once someone pushes the send button, it’s almost impossible to control where that information goes, which is why board members should exercise extreme caution and prudence with what they put in these messages.”

He says another interesting aspect to this decision is that the condo board was ordered to pay the unit owner $200 in costs, even though the owner was unsuccessful in his quest to have the board produce the emails in question.

“There was confusion about what was in the minutes, and the board was a little late in responding to the owner’s concerns in this regard,” Kleiner says. “So even though the tribunal didn’t award a penalty, it ended up awarding costs to the owner.”

 

 

Date_Published
2019-10-28
Description

Condo dwellers who want to show their support of candidates in political elections should do it in a way that doesn’t involve posting signs in windows or common areas of the building, advises Toronto condominium lawyer Warren Kleiner.

“Most condominiums have rules that dictate what can be visible from the outside, and they invariably provide that only white or off-white window coverings may be visible from the exterior,” says Kleiner, a partner with Shibley Righton LLP.

“Uniformity is really important for market value,” he tells AdvocateDaily.com. “Buildings with a uniform white appearance look sleek and modern, but that will be marred if election posters suddenly start appearing in windows or on balconies.”

Kleiner says that condo corporations have the ability to pass reasonable rules that are intended to protect the value of the asset, adding that most people accept these limitations as being reasonable.

“If boards were to allow political advertising on exterior-facing areas, that will not only be aesthetically unpleasing, but it could reduce the value of all the units in the building,” he says.

At any time of the year, items such as flags and pop culture posters are typically banned from balconies and exterior windows in condos by the same rules that prohibit political advertising, he says.

“If someone is plastering exterior windows with Union Jacks and Pink Floyd posters, other people may not want to live there. These items belong on the wall in a teenager’s room, not on the exterior of the building.”

He says a lack uniformity affects the overall look of the structure and therefore the value of the units within it.

If an owner wants colourful curtains that is fine, Kleiner says, as long as the back of the curtain facing the street is white.

“If you are in a building where somebody is flying a British flag, and someone else is hanging bright red curtains, that will affect the look of the building from the exterior and will take away from its market value,” he says. “Condo boards do not care what you have facing into your unit.”

He says the Condominium Act does make one “interesting” allowance when it comes to elections, as condo boards must allow candidates or their authorized representatives onto the property during national, provincial, municipal or school board election campaigns.

“In a democracy, it is imperative that candidates be allowed to canvass and distribute their election material,” he says. “But that freedom does not extend to a unit owner being able to post signs on the common elements, nor are candidates allowed to post signs on the property.”

Some condos have internal message boards where owners typically advertise items for sale or parking spots for rent but don’t even think about putting a political poster there, Kleiner says.

“These boards aren’t meant to start political debates, or deal with something that is outside the building,” he says.

Kleiner says another interesting twist of this legislation is that it does not address the rights of those running for condo board elections.

“If you are a unit owner, but you don’t live in the building, your access could be limited if you want to distribute campaign material.”

He says policies regulating the process of running for a position on the condo board vary, with some condominiums allowing unit owners to randomly knock on doors and promote themselves, while others have rules preventing it.

Date_Published
2019-09-04
Description

Assigning or “flipping” a condo unit is risky for both parties, so be sure to get legal advice from someone well-versed in this area of law, says Toronto condominium lawyer Warren Kleiner.

“Agreements of purchase and sale signed with developers are some of the most complicated contracts that you’re going to see. They are long, come with disclosure statements, are invariably heavily weighted in favour of the vendor, and many are entered into years before the unit is actually ready,” says Kleiner, partner with Shibley Righton LLP.

Assignment agreements arise when people buy a condo unit in a building yet to be constructed, then sell it before the complex is built, he tells AdvocateDaily.com.

“There is nothing physically for them to sell, so people assign their interest in an agreement of purchase and sale to the new purchaser, or assignee,” Kleiner says.

He advises that these agreements should only be done by experienced real estate lawyers who understand the many risks involved for both the assignee and the assignor.

“One thing that I find that is left out in a lot of these agreements is any consideration of the profit the assignor is entitled to,” Kleiner says.

He gives the example of a unit purchased for $1 million, then assigned a few years later to another party, when its value has increased to $1.1 million. The assignment contract should stipulate when the original owner is entitled to that difference, whether at the time of entering into the assignment agreement or upon closing, with consideration also given to the fact that the original purchaser put down a deposit on the unit, Kleiner says.

“Some of these assignment agreements are entered into with deposits that are substantially less than the deposit being held by the vendor. The person buying the unit should reimburse the original purchaser for the deposit, so it is their money being held by the developer, and not the original buyer’s, but I see many of these assignment agreements that neglect to deal with the idea of the deposit,” he says.

In some cases, the developer will close directly with the assignee, Kleiner says.

“In other cases, it is more complicated and we end up with a form of three-way closing as the vendor wants to deal with the original purchaser and not the assignee," he says. So now documents are coming multiple ways, which can be very complicated, as there are a number of issues about how the closing is going to work, and when monies are paid to which party."

Some agreements of purchase and sale will explicitly state that the original purchaser is on the hook for liability, notwithstanding any assignment agreement they sign later, he warns.

“So ultimately, if the person you’re assigning to doesn’t close the deal properly, you’re held liable by the vendor,” Kleiner says.

Other vendor contracts prohibit assignment agreements altogether unless the vendor has given consent, he says.

“Developers don’t want unit holders competing with them when they still have condos for sale, so they often won’t let you assign a unit until all their units are sold,” Kleiner says.

Another wrinkle is the original contract could stipulate that a fee, which could reach up to $15,000, will be charged for obtaining the vendor’s consent, Kleiner says.

When any condo unit is first sold, he says the original purchaser receives a disclosure statement, giving detailed information about the building, such as how many units it will have, what the structure will look like, if it will share facilities with adjoining buildings and how much visitor parking there will be.

Buyers have 10 days to review the agreement and back out of the deal if they want, Kleiner says.

“The assignee should also have the chance to review these documents, so they know what they are buying into,” he says. “If I’m going to be taking an assignment of a new condo, I don’t want to later find out that three rental buildings are going to be sharing our pool, which I will not know unless I have a chance to look at the disclosure.”

Considering the complexity of assignment agreements, Kleiner says it is not surprising that some real estate lawyers refuse to handle them.

“There are all these different things that you really have to be careful about,” he says. “However, if the agreement is done properly, with the unit going to the right person and the assignor getting the money he or she is entitled to, then everyone will be happy.”

Date_Published
2019-08-09
Description

Condo boards have to be prepared to deal with requests from residents for charging stations as electric cars become more commonplace, says Toronto condominium lawyer Warren Kleiner.

“It’s really important for a corporation to be proactive, and to give some thought to how electric car chargers could be accommodated in the building,” says Kleiner, partner with Shibley Righton LLP.

If a unit owner asks for one to be installed, the Condominium Act states the board has only 60 days to deal with that request, he tells AdvocateDaily.com.

“The board can only reject the proposed installation for a limited number of reasons, such as showing that it will adversely affect the structural integrity of the property or assets of the corporation, or that it will pose a serious risk to the health and safety to individuals,” Kleiner says.

Other acceptable reasons for rejecting chargers include that they would damage the property or the assets of the corporation, or be contrary to a law, Act or regulation, he says.

“The biggest problem for condo boards is that they must respond within 60 days,” Kleiner says. “If they have not yet studied whether their building could accommodate these charging stations — usually with the help of engineers — directors could have no choice but to approve the installation, even though it’s not what the board wants or what is best for the corporation,” he says.

The Act sets out two processes that can be used to install electric vehicle chargers in the building, depending on whether the corporation wants to install a charger or the request is coming from a unit owner or the condo board.

“The Act envisions that if unit owners want the chargers, they will pay all the installation costs and electricity use,” Kleiner says.

Drawing on his experience with this issue, he says a third option or hybrid works best: where the condo board pays to have an electrical backbone put in place to support the chargers, while the unit owners are responsible for their own charger and electricity use.

“There are questions about how this hybrid model fits into the Act,” Kleiner says. “I don’t think it is contrary to the Act, it’s just not specifically provided for; however, it is the only practical answer going forward for many condominiums.”

Condominiums have a limited electrical capacity, he says.

"If condos are retrofitted with a new EV charger dedicated electrical backbone, which includes a specific panel for the connection of EV chargers, and owners are required to install 'smart' chargers that work with the installed panel and can talk to each other to regulate electrical consumption, in many cases, a greater number of electrical chargers could be added, without exceeding the existing electrical capacity of the corporation," Kleiner says.

“By working through the new panel, ‘smart chargers’ talk to each other,” he says. “If there is a huge demand on power in the building, the panel will lower the amount of power to each charger and balance the power, so that everybody can be charged but without overloading the system.”

This approach should allow some condos to double the number of chargers it can accommodate, Kleiner says.

“Most corporations are finding they need some type of hybrid solution, where the corporation installs this backbone and the dedicated panel, with the owners paying for individual chargers and the electricity they use,” Kleiner says.

In some condos, people installing a charger will pay an amount to the condo to reimburse it for a proportionate share of the cost of the dedicated electrical panel, he says.

“As time marches forward, I think what we’re going to see requests for these chargers increasing, so condo corporations need to be thinking about them now,” Kleiner says.

Date_Published
2019-07-16
Description

It's a growing trend in Ontario for condo residents to try to circumvent pet bans by claiming their dog is an emotional support animal, but there are many misunderstandings around the legalities of the issue, says Toronto condominium lawyer Warren Kleiner.

A recently publicized case from British Columbia probably added to the confusion, says Kleiner, partner with Shibley Righton LLP.

In the B.C. case, a woman suffering from severe anxiety is fighting to have her dog recognized as a service animal that she requires to live with her.

But Ontario and B.C. laws differ in their approach to this question, Kleiner tells AdvocateDaily.com.

“In Ontario, it has nothing to do with the animal — whether it’s a service or emotional support animal is irrelevant,” he says. “I often have a condo manager say, ‘We have a tenant with an animal, and they gave us a copy of the certificate showing her dog’s a trained support dog.’ But it’s not about the dog — it always has to do with the individual.”

Kleiner advises condo boards and managers in this situation that the Ontario Human Rights Code, with its provision of a duty to accommodate people with disabilities, takes precedence over everything else.

So regardless of a dog’s certification as a service animal or the rules and bylaws of a condo building, the overriding factor is whether the owner can show he or she has a medically recognized disability and requires the dog in relation to that disability, he says.

“The first thing we’re going to do is ask for medical documentation to evidence the fact the individual has a recognized disability,” Kleiner explains. “We don’t need the diagnosis — in fact, we don’t have the right to ask what it is. A doctor must say this person has a disability — which for a mental health disability must be one that's recognized under the DSM5 (Diagnostic and Statistical Manual V) and requires that animal as part of their treatment for the disability.”

However, there are complications, he says, as Ontario courts have occasionally made rulings that drill a little deeper into whether a support dog is essential to the person’s ability to live in their condo.

In one case, everything turned on what the resident would do if not allowed to keep her dog and the evidence was that she would not move but would visit her dog every day,” Kleiner says.

“The resident was not allowed to keep her dog. Had that person said, ‘I’d have to move from the unit’ they likely would have been able to keep the dog.”

But Kleiner says, at the Human Rights Tribunal, it is expected that the tribunal would more likely focus on whether the animal provides a medical benefit to the person.

“It doesn’t necessarily have to rise to the level of whether or not they have to move from the unit,” he says.

In this conflicting set of circumstances, each case must stand on its own merits, Kleiner says.

“But ultimately what’s really important is that condo corporations absolutely have a duty to accommodate people with disabilities,” he says.

Kleiner advises condo boards dealing with questions around exceptions to pet bans to engage in a respectful dialogue with the resident and request medical documentation. While they should not pick apart the medical information, they would be justified in questioning a doctor’s letter that was too vague or came from a walk-in clinic, he says.

Another difficulty is keeping medical information private when other condo residents are up in arms about the animal, Kleiner says.

“It’s tough because other residents will ask why a dog has been allowed in the building,” he says. “Management must be very careful to protect the person’s privacy, and not say that a person has a disability.”

Date_Published
2019-06-17
Description

Deborah Howden and Warren Kleiner Head Shot

Purchasers who wish to invest in condos prior to construction can mitigate their risk by seeking legal advice before signing on the dotted line, according to Toronto condominium lawyers Deborah Howden and Warren Kleiner.

Howden and Kleiner, partners with Shibley Righton LLP’s Toronto office, tell AdvocateDaily.com that a string of recently cancelled projects in the Greater Toronto Area (GTA) has left prospective purchasers high and dry, sometimes years after they paid their deposits.

Even if that money is returned to them, investors still lose out on the equity that would have built up in their property in the meantime, which can amount to a hefty sum in a market as hot as the GTA.

“Essentially, there is always a risk when buying a new condo because the builders will always include various clauses allowing them the ability to get out of the contract,” Kleiner says. “I can’t stress enough the importance of getting a lawyer to review these agreements, who can advise buyers of what they’re getting themselves into, and if possible, secure amendments to the contract to protect their interests.”

But not just any lawyer will do, adds Howden.

“It should be someone who knows condos,” she says. “If you get advice from a lawyer who deals with cottage properties, they may not have much experience with the documents, and may not know what to look out for.”

Howden says one recent Superior Court decision in favour of a developer who cancelled a project two years after buyers paid their deposits could put off future prospective pre-construction buyers.

He acted for some of the 600 investors in a sold-out Vaughan development who went to court seeking a declaration that their purchase agreements were invalid because of their extreme language, which allowed the seller the “sole, absolute and unfettered discretion” to cancel the contracts.

A judge found that, properly interpreted, the provision did not, in fact, give the developer a “sole, absolute and unfettered discretion” right to early termination. Nevertheless, he found that its right was properly exercised in this case, and rejected the buyers’ application to void the contract.

In an article on the case, the Toronto Star reported that there were 5,000 units affected by project cancellations in 2018, up from just 379 in 2016.

“It’s very bad news for the buyers,” Kleiner says. “No matter what you try to do to protect yourself, there are certain risks associated with brand new condos. You can put down your deposit, only for the vendor to come back years later, hand you back your money, and tell you it’s no longer proceeding.

“The only way to avoid that kind of risk altogether is to buy something that’s already built,” he adds.

Still, for those determined to proceed with a pre-construction purchase, Howden says there are other steps they can take to mitigate against the risk of cancellation.

“Make sure you are dealing with a reputable builder, and take a look at any past projects they’ve been involved with,” she says.

Under the Condominium Act, developers must give investors a 10-day cooling off period after signing their agreement to purchase a pre-construction unit, during which withdrawal can occur without penalty. Kleiner says this provides the perfect opportunity for buyers to seek counsel from a lawyer who can warn them about any terms that may fall short of industry standards.

“That cooling-off period is crucial,” he says. “These agreements can be very complex, so you want to have enough time for your lawyer to go through them. Even if you come late in the day, you may be able to get an extension of the time.”

For those who do proceed, Kleiner says they may be caught off guard by the extra costs often associated with new-build condos. For example, the law allows vendors to charge “interim occupancy fees” to cover maintenance costs during the stage of limbo between when the units are built and the time when the new condo corporation is officially registered.

Unit owners in the completed lower floors of buildings may also face these same charges before the construction on higher floors is complete, Howden warns.

“Not everyone realizes the consequences of the two-step closing,” Kleiner says. “You may have to move in before you actually own the unit, so it’s essentially akin to paying rent to a developer.”

Howden adds that while the risks of buying a pre-construction condo cannot be eliminated altogether, they can be mitigated.

Date_Published
2019-05-15
Description

Condo boards have two options if they want to prohibit smoking, growing or processing cannabis within their buildings — they can either amend their declaration or pass a rule, Toronto condominium lawyer Warren Kleiner tells Law Times.

“A rule is easier to pass, but a rule has to be reasonable,” says Kleiner, partner with Shibley Righton LLP in Toronto. “What we do think is problematic [is] when corporations take steps to ban cannabis but not tobacco. Rules have to be reasonable, and if you’re smoking in your unit and it gets into the hallway, what’s the difference if it’s tobacco smoke or cannabis smoke? Smoke is smoke; otherwise, a rule risks being overturned.”

The online legal news outlet reports that condo corporations that opt to ban cannabis could still grandfather rules to existing residents or owners if those guidelines to prohibit smoking were not in place before the Oct. 17, 2018 legalization date.

Even without a rule that bans smoking cannabis, it’s important for condo residents to understand they will still have to act reasonably, Kleiner says.

“You’re still subject to the other rules that say that you can’t unreasonably disturb others, you can’t create a nuisance,” he says. “[Many] buildings thought that they couldn’t do anything about tobacco smoke because it’s legal, and [the] corporations didn’t take steps to put a stop to smoking when it was causing problems, but that was not right.”

In the months leading up to cannabis legalization, Kleiner says many condo corporations were enlightened to the fact they didn’t have to put up with tobacco smoke and that they could put a stop to cannabis and tobacco smokers who were creating issues. He likens it to a resident who plays the drums, saying even though it’s legal, it doesn’t mean they can play as loud as they like whenever they like.

“The [condo board’s] rule-making authority is to promote the safety, security or welfare of the owners and of the property and assets of the corporation — right there, we have safety and welfare of the owners because of second-hand smoke,” Kleiner says. “It falls squarely there.”

He says rules can take different forms, such as banning smoking within units, on balconies and terraces or both depending on the building.

Date_Published
2019-03-25
Description

In the final instalment of a two-part series, Toronto condominium lawyer Warren Kleiner discusses solutions to some of the common issues that arise with shared facilities agreements.

A community-focused approach can help defuse tensions caused by shared facilities agreements (SFAs), Toronto condominium lawyer Warren Kleiner tells AdvocateDaily.com.

As Kleiner, a partner with Shibley Righton LLP's Toronto office, explained in part one of this series, SFAs, which spell out who is responsible for expenses associated with common facilities, are a frequent source of strife among condo corporations and freehold entities.

However, he says there are a number of steps parties can take to get ahead of disputes or to avoid them spiralling out of control.

Co-operation

“Working together is critically important for parties to an SFA,” Kleiner says. “If it involves three condos, any solutions must work for the entire community.”

Community thinking is even more important for those on the shared facilities committee tasked with making decisions relating to the agreement.

“Boards can often have an us-versus-them mentality, but that’s a recipe for expensive legal battles,” Kleiner says. “The whole point of these agreements is to facilitate sharing and cooperation.”

Even if one condo views itself as the victor in a dispute over the terms of an SFA, he says the attitude can backfire in the long run.

“An individual condo might save $3,000, but if it affects the community and damages the relationship going forward — or results in improperly maintained grounds — then it could hit the market value of units across the complex, and everyone suffers,” Kleiner says. “It’s better for everyone if they all operate as a cohesive community, as opposed to completely separate entities.”

Study the agreement

“One of the big problems I find is that condo corporations don’t know what’s in the agreement,” Kleiner says. “They haven’t read it, and things put in place by the developer early on are allowed to continue without anyone knowing about the details.

“Everything can be fine for years until someone finds out they’re paying for something they shouldn’t. Then you have problems,” he adds.

Kleiner says board members should familiarize themselves with any SFAs their corporation is subject to, and have it reviewed by a lawyer to identify any potential pain points as soon as possible.

From a practical point of view, he says it’s helpful if survey plans are colour-co-ordinated to show who owns what, and precisely which portions of the property are shared.

“Often people wrongly assume how much is shared. You don’t want to go 30 years over-contributing, and then try to recover the excess costs later,” Kleiner says. “Knowing the agreement is crucial for that.”

Start afresh

In some circumstances, Kleiner says it can be in everyone’s best interest to enter into a new or amended SFA that better reflects the actual use of shared facilities.

“If you’ve been doing something for 30 years that works and you feel it is fair, then you can use amendments to the agreement to formalize that practice,” he says.

Frequently, Kleiner says an expansive definition of the shared facilities works well for all parties since it allows them to benefit from economies of scale while improving uniformity and consistency in terms of maintenance and repair.

“Sometimes the opposite is true, and it makes no sense to share certain things, depending on how it works in practice,” Kleiner adds.

Either way, he says parties should remember that an SFA is not a short-term commitment.

“These agreements were never intended to be terminated. They’re supposed to last as long as the buildings, so once you have one, you’re entering a long-term relationship,” he says. “That’s incentive enough to be reasonable and find solutions.”

Click here to read part one where Kleiner explores some of the common problems presented by SFAs.

Date_Published
2018-11-16
Description

In part one of two-part series on shared facilities agreements, Toronto condominium lawyer Warren Kleiner outlines the most common issues that arise.

Shared facilities agreements (SFAs) are a frequent cause of concern for condo corporations, Toronto condominium lawyer Warren Kleiner tells AdvocateDaily.com.

Kleiner, a partner with Shibley Righton LLP's Toronto office, explains that the agreements are most often associated with recreation facilities such as pools, yards and activity rooms in developments that are home to multiple condo corporations and in relation to facilities such as shared roadways, gatehouses, parking garages and utility feeds, spelling out who is responsible for associated expenses.

“Any time a condo is not stand-alone, you should have an SFA, whether it’s between more than one condo corporation, or a few condos and a freehold entity,” Kleiner says. “And the costs can be pretty high. I have seen some condos where half of the common expenses are going towards shared facilities."

Many of the problems associated with SFAs arise from the fact that they are drafted by developers, often years before the subject condos become a reality, he says.

“They’re done in a conceptual sort of framework when nobody knows how things will work in reality, once everything is in existence on the ground,” Kleiner says. “The practicalities at the end of the day are not necessarily the same as what was envisioned when the SFA was written.”

Under the Condominium Act, condo corporations do have a route to challenge SFAs in Superior Court, but Kleiner says the legislation’s strict requirements heavily limit its use.

A condo can only make an application to the court for an order amending or terminating an SFA within 12 months of turnover in cases where the disclosure statement failed to adequately disclose the provisions of the agreement. However, corporations must also prove that the agreement “or any of its provisions produce a result that is oppressive or unconscionably prejudicial to the corporation or any of the owners.”

“If the developer disclosed an oppressive agreement, then there is likely no remedy,” Kleiner explains.

By the time patterns of use are set concerning shared facilities, the 12-month deadline has often passed, but that doesn’t stop corporations from raising objections to the agreements that govern their costs, he says.

“I see SFAs that don’t cover everything or cover things they shouldn’t. Given how use works out in practice, one party may feel the allocation of costs is unfair, but interestingly, the Act does not require that SFAs be fair or equitable,” Kleiner adds.

For example, he recently acted for a condo corporation that raised concerns about a condo's responsibility to replace the pavement in a portion of a parking lot that was part of the common elements, even though it was used as a commercial paid parking lot.

For example, he recently acted for a condo corporation that raised concerns about a condo's pavement and parking lot considered part of the common elements, even though they were used almost exclusively used by patrons of the commercial units.

“The residents felt like they were unfairly subsidizing the commercial entity because they were contributing to the maintenance and repair of the pavement that was used to generate revenue for the commercial entity,” Kleiner says.

In addition, he says the wording of SFAs often do not help the situation.

“Some won’t clearly set out how decisions are supposed to be made. Even if they establish a committee authorized to make decisions, they often don’t say whether decisions should be by a simple majority of the committee members, by the members that represent a majority of the parties to the agreement or whether they should be unanimous,” Kleiner says.

Stay tuned for part two, where Kleiner will explore some solutions to the problems presented by SFAs.

Date_Published
2018-10-24
Description

Condominium directors on the board could benefit from additional training in governance issues beyond what mandatory education courses provide, Toronto condominium lawyer Warren Kleiner tells AdvocateDaily.com.

The Condominium Act 1998 requires that all directors appointed, elected, or re-elected on or after Nov. 1, 2017 complete a training program provided by the Condominium Authority of Ontario (CAO) within six months to assist them in understanding their obligations and best practices for good governance, according to the CAO website.

“That gives directors a better understanding of how condos work, but there are often other issues we are asked to comment on when the board is having problems,” says Kleiner, a partner with Shibley Righton LLP in Toronto.

The Condominium Director Training Program, provided by the CAO, consists of 21 short modules, one of which specifically addresses “The Role of Directors and Their Key Responsibilities.” It covers the statutory obligations and corporate governance principles that guide directors, but Kleiner has some extra tips for prospective and current board members.

“Some people get on the board with the intent of putting forward a particular platform. A big problem I often see is when one board member tries to make a unilateral decision,” he says.

“When it comes to the authority of directors, it’s really important to understand that all decisions have to be made at a duly constituted board meeting where there is a quorum. A director does not have the authority to unilaterally make a decision without board approval.”

Kleiner says this problem occurs when directors have a preconceived view of what they want to do.

“All issues must be approached with an open mind to make the best decision on behalf of the corporation,” he says. “Once the decision is made, all the directors should support the decision of the majority.”

Rogue directors with an agenda will often do everything they can to implement their own plan, including taking steps to thwart the board’s decisions, Kleiner says.

“They know the action is contrary to the position of the board, but they work against the board, and say they are doing it in their capacity as a unitholder. Once you’re a director, you are obligated to act in the interests of the corporation and unit owners as a whole.”

Kleiner reminds his clients that the standard of care under the Condominium Act imposes a duty to act honestly and in good faith.

“Directors are protected for actions taken as board members, but they will be open to personal liability if they don’t act honestly and in good faith,” he says.

There is also a duty for directors to be prepared with respect to their responsibilities, Kleiner adds.

“You should review the minutes and management reports, and come to the board meeting prepared to make decisions and discuss topics,” he says. “Otherwise it is a waste of time, and the board might make a bad decision.”

Kleiner says there’s also a requirement that board members rely on the advice of experts.

“Boards can be penny wise and pound foolish,” he says. “They should get proper advice before making big decisions. For example, if they are starting a big renovation contract without appropriate advice, they might save $5,000 in legal fees on a million-dollar contract. It doesn’t make sense. Board members are everyday people. We don’t expect them to be experts.”

Another area covered by the mandatory education is around strategies to maintain healthy relationships with owners and residents, but Kleiner thinks this issue requires extra effort by the board.

“The biggest concern from owners is communication. No matter how well the board communicates, it can always be improved on,” he says.

Kleiner emphasizes the need to keep owners involved both at the time of a decision and beforehand.

“Owners often get upset, not about the actual decision, but about the lack of communication while making the decision. Why not solicit input beforehand? The benefit from owner information sessions cannot be overstated.”

Kleiner suggests that a helpful tool for current board members is an ongoing issues list that details how issues were resolved.

“If the same issue comes up 10 years later, and no one from back then is still on the board, newer directors can look back and see what issues came up, how the board dealt with them, and what the results were. It is a living document that provides continuity.”

Another common problem Kleiner sees is a failure to differentiate between the role of management and that of the board.

“Do not micromanage your manager,” he advises. “It’s the board’s responsibility to make decisions. Management is required to carry out those decisions. In most cases, no director should interfere or communicate instructions directly to contractors, staff or potential staff. Managers manage. Directors direct.”

Date_Published
2018-10-09
Description

With bed bugs becoming an increasingly common problem for condominium corporations, Toronto condominium lawyer Warren Kleiner says corporations need to have a tactful approach in dealing with the problem.

“Bed bugs have proliferated everywhere and can spread in unexpected ways. It’s hard to determine where they originated in a building so don’t make accusations,” he tells AdvocateDaily.com.

Having a balanced approach involves both unit owners and the board in eradicating the bugs, says Kleiner, a partner with Shibley Righton LLP in Toronto.

“It’s a partnership between the owners reporting and the corporations hiring a pest control company. If you’re going to charge people in a unit for extermination costs, you’re blaming them in a way," he says.

Billing a unit owner may also prevent other residents from coming forward if they find bed bugs, Kleiner says.

“The best approach is to ensure people feel comfortable to report rather than feeling stigmatized. And while there may be an argument that you can charge a unit dweller for costs incurred, most corporations will treat and pay for it because there likely is more than one unit infested,” he says.

Kleiner also advises against putting up notices about bed bugs throughout the building.

“You don’t want to alarm people,” he says.

Preventive inspections can be tricky due to the high costs and the difficulty in getting into each unit, Kleiner says.

“I’m not sure you want to incur the costs of inspecting every unit unless you know for sure there is a widespread problem," he says.

Kleiner says a condo corporation has the right to enter residences under the Ontario Condominium Act in order to carry out its duties and obligations.

“If they believe there is a bed bug infestation in a unit that is not being dealt with, they certainly have the means to get someone into the unit to check and take the necessary steps,” he says.

Some of these cases may find their way to court if there is a hazard and the corporation isn’t being allowed to deal with it, Kleiner adds.

“If that is an issue, the corporation needs to call its lawyers because we can always ensure the situation is properly handled,” he says.

Kleiner recalls an extreme case of bed bug infestation that led to renovations inside a unit.

“We had to force the owner to re-do their ceiling because the pest control company said there were so many stains on the ceiling due to the pests, it was hard to determine if there was a new infestation,” he says, adding the owner also had to agree to inspections at regular intervals.

Some boards have a policy in place that allows for inspection in the units surrounding the location of an infestation, Kleiner says.

“That’s something that helps stem their spread,” he says.

The one thing a corporation cannot do if there is a bed-bug problem is ignore it, Kleiner says, recounting the experience of a friend who struggled to rid a dwelling of the pests.

“He discovered bed bugs in his condo when he came back from his honeymoon, and actually ended up with PTSD because of it. Every single night for months he had to pour boiling water along the baseboards to try to get rid of all of them,” he says.

“This is why it is so important for condo corporations to act quickly if they become aware of a problem,” Kleiner says.

Date_Published
2018-07-09
Description

Condominium corporations and unit owners can expect their costs to climb due to the higher minimum wage and other changes to the recently updated Employment Standards Act (ESA), says Toronto condominium lawyer Warren Kleiner.

The minimum wage, which increased to $14 an hour on Jan. 1 and is expected to rise to $15 an hour in 2019, had an immediate impact, says Kleiner, a partner with Shibley Righton LLP in Toronto.

The changes have most likely created a domino effect, with other employees currently earning more than the minimum wage seeking similar increases to reflect their responsibilities, he says.

Kleiner tells AdvocateDaily.com that condo corporations currently under locked service agreements won't face increases until the contracts are renewed but when that happens, “they’re going to get hit.”

“The minimum wage is going to be a direct hit to condominiums," he says. "The other thing that will trickle down is the impact of those other individuals who will be seeking raises in lockstep with the increases in minimum wages."

Part-time and casual workers are required to be paid the same as full-time workers for substantially the same work, except for reasons of merit or seniority, he says.

The corporation's common expenses — which are borne by the unit owners — will absorb the increased costs, Kleiner says.

"It depends how many employees or contractors the corporation has," he says. "Some condominiums have one employee and everything else is independent contracts. They may not see a big impact, but the more staff you have, the higher the costs.

"And it's going to translate into an increase on your assessment because the corporation is going to have to pay for those higher costs," Kleiner says.

Other elements of the ESA that could impact the bottom line include expanded personal emergency leaves, such 10 sick leave days of which two must be paid, unpaid extended leaves for medical reasons, maternity, the death of a child, and for being a victim of a crime. Employees taking a leave may also need to be temporarily replaced.

"All of these added costs will ultimately make their way to what condo corporations pay, therefore trickling down to the common expenses," Kleiner says.

The ESA also requires a poster outlining employee rights and obligations to be posted where staff will see it and a translated poster if the majority language at the worksite is other than English.

"Another big change that will affect condominiums is on-call employees," Kleiner says.

Employees who are on-call are required to be paid three hours' wages, even if they are not called to work, he says. Many condo corporations have people on call for emergencies or weekends.

"Ultimately everything is going to trickle down because if a company has to pay their people more, or pay to cover people who are off, it's going to make its way down to the client," Kleiner says.

Date_Published
2018-06-01
Description

Toronto condominium lawyer Warren Kleiner’s practice area keeps him on his toes.

The most recent census estimated the city’s condo dwelling population to be 1.5 million people, or more than half of the total number of people living in Toronto, a figure that jumped from just under one million in 2011.

“More and more people are living in condos, and that kind of explosive growth means that the sorts of matters we’re dealing with are constantly changing and expanding,” Kleiner says. “There are always new issues, which makes it challenging, but also exciting.”

After graduating from Osgoode Hall Law School at the turn of the century, Kleiner, a partner with Shibley Righton LLP's Toronto office, received his call to the bar around the same time as Ontario’s Condominium Act 1998 came into force, revolutionizing the regulation of condos in the province.

Currently, his practice is focused on the fallout from the most recent revamp of the Act in late 2017, arguably its most significant since the law was introduced.

“That has changed things dramatically again,” Kleiner explains.

Despite that, he tells AdvocateDaily.com that a career in condo law wasn’t always on the cards for him. Indeed, he flirted with the idea of litigation while in law school.

“Condo law wasn’t really an option when I was called to the bar, and law school can’t really gear you towards that area of law,” Kleiner says.

However, he was introduced to condo law after developing a real estate practice at a small law firm on Bloor Street, where he acted for a number of purchasers with mould problems in their new conversion condos. Eventually, he joined condo law pioneer Audrey Loeb’s practice group at a large Bay Street firm and has not looked back.

In 2011, he took a break from the law to run a smoked meat restaurant in Montreal.

“I’ve always loved what I do, but I had an opportunity, and I felt I had to take it,” Kleiner says, adding that his legal background helped with the transition to business.

“It made it much easier to do what I had to without stress,” he says. “It was also fun to be on the other side of the table, and have my own lawyers to handle legal issues.”

After meeting his then fiancé, now wife, Kleiner returned to Toronto in 2014 and resumed his legal practice, bringing with him a new perspective on his work.

“The whole time away gave me a different appreciation of what I do, and somehow allowed me to approach it with greater confidence,” he says.

Kleiner slotted back into Loeb’s team, before making the move with her and a number of colleagues to Shibley Righton last year.

“The transition has been wonderful. We are a very close group, and the firm provides the ideal platform for us to practise from, with outstanding support that we can tap into in other areas of law when it’s needed for our condo clients,” he says.

The bulk of Kleiner’s practice involves assisting condominium boards and management companies on a variety of matters related to governance, including advising on bylaws, rules and agreements entered into by condo corporations.

“There are political aspects to what we do, that come up when you’re dealing with people’s communities,” he says. “When we’re giving advice to corporations, you have to keep in mind that it’s really on behalf of the entire corporation, and not just the board members, so you’re always taking into account how things will impact the larger community.”

Date_Published
2018-05-07
Description

Amendments to the Condominium Act that took effect in November 2017 marked the most significant changes to the condominium industry since its inception, writes Toronto condominium lawyer Warren Kleiner in Condo Voice.

With approximately 10,000 residential condo corporations in Ontario and 800,000 residential units, it was time for some modifications to the 1998 Act, says Kleiner, a partner with Shibley Righton LLP's Toronto office.

While changes to the Act will unroll in stages, the November amendments relate primarily to governance matters, communications with owners, mandatory disclosures and training for directors, meetings and voting, corporation records and the creation of the Condominium Authority of Ontario (CAO), the article says.

The CAO — focused on consumer protection and supporting healthy condo communities across Ontario — will be a source for information, training, dispute resolution, and other services, Kleiner writes.

“The CAO will offer a new, online dispute resolution process, called the Condo Authority Tribunal (CAT), starting Nov. 1, 2017,” he says. “The CAT will have the exclusive jurisdiction to hear and make legally binding and enforceable decisions about condo disputes. Only disputes identified by the government in the regulations can be [filed] with CAT, which at first will be limited to disputes about records of the Corporation.”

Kleiner says with the changes, condo corporations will now have to provide new information certificates to owners — Periodic Information Certificates (PICs), Information Certificate Updates (ICUs) and New Owner Information Certificates (NOICs).

“The PICs will have to be sent twice per fiscal year, within 60 days of the end of the corporation’s first and third fiscal quarters,” he writes. “They will include information about legal actions and judgments, insurance information including the maximum insurance deductibles that can be charged back to owners, information about directors involved in legal action and if they are in arrears 60 days or more, budget information, reserve fund balance, remaining contributions, anticipated expenditures, projected increases, and more.”

In addition, the article says that preliminary notices containing information about the upcoming owners’ meeting will now have to be sent at least 20 days before the actual notice of meeting. The notices will indicate the date and purpose of the meeting and, if it is to elect directors, it will also include a deadline for submitting a candidacy and candidate disclosure.

Kleiner says a welcome new requirement is the disclosure obligations for board candidates.

“Each candidate will have to disclose whether he/ she is 60 days in arrears or more in the payment of common expenses, whether he/she is an owner or occupier of a unit, has been convicted of an offence under the Act or regulations in the past 10 years, is (or a family member or tenant is) involved in legal proceedings with the corporation, or is a party to or has a material interest in a contract or transaction with the corporation or the developer,” he writes.

“These disclosures must be submitted in writing to be included with the Notice of Meeting or made orally at the meeting. Corporations will be able to pass bylaws to require additional disclosures. All directors will now have to complete prescribed training within six months of being elected, re-elected or appointed to the board. The courses are free and available online. There is no test or exam. The training must be renewed every seven years.”

With respect to records, most will have to be kept for a minimum of seven years, including financial records, operating records and status certificates, Kleiner writes.

“Fundamental documents such as the declaration, bylaws, rules, current agreements and insurance policies will have to be kept indefinitely,” he says. “Proxies and ballots have to be kept for 90 days unless the corporation receives notice of a claim.

Records must be maintained in paper or electronic format and electronic records must be capable of being reproduced within a reasonable amount of time and include a mechanism to protect against unauthorized access the article says, adding steps must be taken to protect against loss, damage or inaccessibility such implementing an automatic backup system.

Kleiner says that core documents — the declaration, bylaws, rules, shared facilities agreements, the current budget, the most recent financial statements and auditor’s report, record of owners and mortgagees, information certificates sent within the last 12 months, recent minutes of owners and board meetings and the most recent plan for future funding of the reserve fund — are generally provided at no cost, but when a charge is applicable, the maximum is to be 20 cents per page.

Requests for records must be made using the prescribed form, he writes.

“The request must be related to the person’s interests as an owner, purchaser or mortgagee and have regard to the purposes of the Act, although the requester does not have to provide the reason,” Kleiner says. “The board will have 30 days to respond to the request using the prescribed form, and if a request is denied, the reason must be given. There is a form to then be used for the requester’s response.”

The Condominium Services Act, 2015 (CMSA) creates a new regime in Ontario for the regulation and licensing of condominium managers and management service providers, the article says.

Licensing is another area that will be amended to reflect new educational and examination requirements, Kleiner explains.

“Anyone providing ‘condominium management services’ will have to be licensed, subject to some exceptions,” he writes. “The CMSA defines 'condominium management services' to mean collecting or holding contributions to the common expenses or other amounts levied by, or payable to, the corporation, or exercising delegated powers and duties of the corporation or its board of directors including: making payments to third parties on behalf of the corporation; negotiating or entering into contracts on behalf of the corporation; and supervising employees or contractors hired or engaged by the corporation.”

There are two main categories of licences: a general licence and a limited licence as well as temporary categories of deemed licences for those working as property managers at the time the legislation comes into force, Kleiner says.

“Those working for less than two years at the time the CMSA comes into force will hold a deemed limited licence and will have to apply for a limited licence within 90 days,” he writes. “Those with more than two years’ experience will hold a deemed transitional general licence and will have 90 days to apply for a general licence or a transitional general licence. An applicant for a transitional general licence must hold a deemed transitional general licence and will have three years to apply for a general licence.”

There are also new rules for disclosures of interests, the article says.

A licensee who, directly or indirectly, has a material interest in a contract or transaction to which the client is a party or a proposed contract or transaction, is required to disclose the nature and extent of the interest, in writing, in accordance with the prescribed requirements, Kleiner says.

“If the interest arises after the client enters into the contract or transaction, the interest must be disclosed as soon as the licensee becomes aware of the interest. If a licensee is required to disclose an interest in a proposed contract or transaction, the licensee cannot enter into the contract or transaction on behalf of the client unless the licensee has disclosed the interest and has obtained the written approval of the client to enter into the contract or transaction.”

Date_Published
2018-04-13
Experience
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BIO

Warren Kleiner is condominium lawyer with experience in real estate. Warren primarily represents condominium corporations.

He assists condominium boards and management companies on all matters relating to condominium governance. He reviews and advises on the Condominium Act, declarations, by-laws and rules and all agreements that are entered into by condominiums. He also advises on liens and proceedings involving problematic owner-condominium relationships and on issues involving shared facilities.

Warren has assisted many condominium communities to update their shared facilities agreements to avoid disputes and provide for a fair and workable framework for managing shared facilities. Warren is committed to keeping his clients up to date with the evolving state of Condominium Law. He is active with the Canadian Condominium Institute (CCI) and is currently a member of the Canadian Condominium Institute Toronto Marketing Committee. He has also been active with the Association of Condominium Managers of Ontario (ACMO) and was on the Condominium Management Regulatory Authority of Ontario’s (CMRAO) Stakeholder Implementation Working Group to provide input and identify considerations to ensure the smooth development and implementation of the CMRAO. He has authored several articles on condominium-related topics for other industry publications including the Condo Voice and the Real Estate News. He has lectured at the Law Society of Ontario, the ACMO/CCI Condo Conference and various CCI and ACMO seminars. Warren was also an instructor for the bar admission course real estate section.

Warren’s goal is to provide his clients with efficient and cost-effective services while finding practical solutions to problems.

Contact Information

T: 416.214.5238
F: 416.214.5438
E: wkleiner@shibleyrighton.com

vCard
Education
  • LL.B., Osgoode Hall Law School
  • B.A., Concordia University
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