"Jackals" Are Necessary In Today's Condo World

The recent tragedy in Florida has put an international spotlight on condominiums – and rightfully so.  The tremendous loss of life in suburban Miami, with residents being killed in their sleep in the middle of the night, justifiably causes terror to anyone living in a condominium today (this author included).  But as news articles looking into the building collapse have started to point out, this tragedy perhaps could have been avoided earlier.

One Canadian professor quoted in the Globe & Mail wrote a book in 2019 that argued, overall, that what condominiums need is less regulation and governance, not more.  The professor argued that with less legal regulation and surveillance, and less professional involvement of Condominium Managers, condo lawyers, and other “commercial actors” in the condominium industry, there “might be more board participation amongst resident owners (and a place for renters at the table); a greater sense of inclusive community and opportunities for meeting and the interaction that foments it; more reliance on natural surveillance and following rules out of common interest … and increased reliance on common resident knowledge”.

In fact, in the Conclusion chapter of his 2019 book, this social studies professor asserted:

“… the condo industry has self-interested “jackals” whose legal, security, and risk knowledges are packaged and sold at premium prices and who feed off poor governance and reluctant, self-interested, or corrupt boards.” [emphasis added]

Yet, without these “jackals” to guide (and sometimes force) condominium communities governed by layperson Boards to properly plan for the large expenditures necessary to mitigate against the risk of a building collapse, people’s natural short-term self-interest will frequently win out – until one day, when it all comes to a head. 

The intent of Ontario’s Condominium Act is to protect the consumer, namely the unit owners; and there is no greater duty than to protect the lives and safety of those living in condominium buildings.

“Jackals” have been, and likely will remain, a necessary part of the natural ecosystem of the condominium world.

Condos These Days are Not the Utopian Communes of Yore

In the professor’s 2019 book, he argues that voluntary associations like housing co-operatives would perhaps be better for freer communities than Ontario’s formal “condominium corporation” framework.  Yet, as with any democratic society, one person’s right to freely swing their fists stops where another person’s face begins – any collective community will always require a delicate balancing act between individual rights.

There are certainly many condominium communities in Ontario that do just fine on their own, with minimal “outside” involvement of professionals.  However, all it takes is one “bad” resident to upend the entire community, and highlight the need for professional involvement.

Condominiums today, especially in and around the City of Toronto, are home to an increasingly diverse range of individuals arriving from all around the world – each bringing with them their own unique perspectives and life experiences.  Without an overarching framework to govern whose rights will prevail over whose whenever they come into conflict (and they are often in conflict, with more and more smaller and smaller dwelling units being built into taller and taller towers), chaos and interpersonal conflict will run rampant throughout people’s homes.

We can all wish that in a perfect world, residents who live together in close proximity would be able to govern themselves without the need for a coercive “fourth level of government” to keep them in check.

But even when I was an undergraduate student, living in Canada’s largest student housing co-operative, there was an internal disciplinary tribunal (which I led for a couple terms as its Judicial Coordinator) to resolve residents’ disputes.  Even in this co-operative setting, with residents mostly around the same age and income level (although certain residents were also older individuals employed at the nearby Research In Motion), there was a need for a certain level of formal enforcement of community rules.

I have also served as the President of two condominium Boards, and I’ve lived in several different condominium communities throughout my life; each with their own unique demographics, representing a cross-section of Toronto.  Even some of the most homogenous condo communities that I’ve lived in (read: mostly “white”, mostly retired, mostly wealthy) had “behavioral” problems within it which required formal enforcement and guidance from condo industry professionals.

“Jackals” are Needed to Force the Tough Choices

While it’s still too early to definitively say what caused the tragic building collapse in Florida, some observers have pointed out that when it came time to levy a $15-million Special Assessment in 2019 for major structural repairs, the Surfside condominium’s Board of Directors faced a revolt from the owners and a majority of the Board resigned as a result.  In the Board President’s September 14^th 2019 resignation letter to the owners (as reported by the Washington Post), she stated:

“We work hard on a project … exploring it for months, doing our due diligence and suddenly the mood is changed, egos assert themselves, and we get nothing or little done … This pattern has repeated itself over and over, ego battles, undermining the roles of fellow board members, circulation of gossip and mistruths.”

Raise your hand if this sounds familiar to you in Ontario.

This is precisely why, as condominium lawyers, we are often called upon for our professional advice.  The specialized “legal knowledge” that the professor’s 2019 book rallies so hard against, is sometimes needed to persuade reluctant Board members and unit owners that yes, this needs to be done no matter how tough a pill it may be to swallow.

We are often asked to personally attend the contentious meetings where these tough decisions must be made (e.g. at Borrowing By-law meetings, where owners must vote on whether to approve a By-law authorizing the Board to borrow large sums of money to pay for major repairs).  By relying on the advice (and presence) of the condominium lawyers, the Condominium Managers, and the professional engineers – all “jackals”, according to the professor’s 2019 book – the volunteer Board members can take the heat off themselves and point to our professional advice as the supporting basis for their decision about necessary expenditures.

As “jackals”, we become the scapegoats of the community – and in doing so, we often face verbal harassment, physical intimidation, and even aggressive threats of sexual assault at these contentious meetings.

When our pressing advice is not enough to persuade a community of owners or a Board of layperson individuals to make those difficult decisions, then each of the “jackals” have a different set of tools to try and make the community set aside their short-term individual interests for sake of the greater good.  Ultimately, having a “jackal” from the outside looking in, can compel the community members to put aside their petty squabbles and focus on the larger task at hand.

As per the Bible’s Isaiah 13:22, hyenas may be howling in the citadels and jackals making dens in the palaces; but without these jackals, Ontario’s castles in the sky may not be standing at all.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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