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25 May 2020

Patience For the Opening of Terraces and Swimming Pools

Many co-owners are in a hurry for buildings to be able to open the common spaces and in particular the terraces and outdoor pools. With the arrival of sunny days, these are pleasant places to frequent and the fact that they are closed seems unacceptable. We understand you and be assured that the condominium managers are working hard for the government to give us permission to open pools and terraces for their clients.

In the meantime, I will explain to you my understanding of the issues and what is set in motion to find a solution allowing us to make these living areas accessible. To support my remarks, I refer to several sources that you can consult if you have the time and/or the interest.

THE POSITION OF SEVERAL LAWYERS IN CO-OWNERSHIP LAW

Several lawyers in co-ownership law offer us the utmost caution in their writings so that administrators help limit the spread of the virus:

“He mentioned that the administrators of co-ownerships have a legal obligation to institute measures to limit the spread of COVID-19. They may not have an obligation to achieve results, but they must set up maintenance routines in all common areas, prevent the operation of certain community places, such as the swimming pool , explains the lawyer specializing in condominium law.”  Attorney Yves Joli-Coeur.

Outdoor Gathering Allowed : Yes, but…

Many co-owners would like us to be able to open the common terraces and swimming pools of condominiums, on the pretext that private buildings have the right to do so. Given the flexibility allowed with regard to outdoor gatherings since Friday , May 22 , this is putting more and more pressure on the board of directors, who are co-owners also and just as eager to benefit from the common areas of their building.

So, is it really possible to open a common terrace for a maximum of 10 people (ultimately there is no longer any question of the limit of 3 households stated in the decree)? If we have to make several groups of a maximum of 10 people, what spacing should be left between each group knowing that the available space is less than in a public park? How will access to these places be managed, for how long, why does he have access and not me? Who should disinfect when changing groups on the terrace? Should we establish a direction of circulation to avoid people crossing?

Opening in the current context brings up many questions to which no one has an absolute answer.

Debates on the qualification of common areas : public or private

In the co-ownership industry, the debate over whether the common spaces of a condominium building are like a public place dates back a long time.

For my part, I began to hear about this distinction when Law 122 (inspection of facades and multi-storey parking lots) came in effect in 2013 and the Association des Syndicats de copropriitées du Québec (ASCQ) advocated that condominium buildings were exempt from this law since they were private buildings. To support their position, the association referred to the judgment of the Joint Committee v Northcrest . Roughly speaking, my understanding of this judgment indicates that it is possible for condominium buildings to pay their housekeeping employees cheaper than the decree since they are not considered to be public buildings.

However, the Régie du bâtiment du Québec has made it clear that condominiums are subject to the Building chapter of the Safety Code.  At the time, I questioned the RBQ on its basis for this decision, and they sent me a summary table allowing me to know which buildings were subject to it . Reading this table, we understand that the majority of condominiums are considered to be subject to the rules of the RBQ, and that the common areas therefore seem to be analogous to a public place, probably since many people can circulate there.  Thus, if the common areas are considered “public”, then it is more likely that it will be necessary to wait for the government to allow the opening of  restaurant terraces , outdoor public pools (phase 6 of the government’s deconfinement plan remains to come ) and gyms and other places open to the public before syndicates can consider opening common areas in condominiums.

A condominium : a private building ?

However, if we manage to argue that it is a “private” place then it is probably possible to consider rules to open, while respecting government decrees (distance of 2 meters and groups of a maximum of 10 people). On the other hand, then we must manage the risks brought to the condominium that this action brings, knowing that the number of accesses to a common terrace is less than to a public park and that it is difficult to maintain social distancing, and thus the risks of contamination of the places where people will circulate will be greater.

Keep in mind that those who have currently authorized the opening of terraces (e.g., certain elderly centers) do so with rules for monitoring, managing the number of people with simultaneous access to the terrace, and with protocols for increased cleaning. They do it a bit like in grocery stores or shops. However, do the condominiums want to add such controls, which obviously come with additional costs?

If we want to open up, without risk for administrators as to their responsibility with regard to the collective interest, a good analysis of the risks and the means of mitigation must be implemented.

The main idea is to avoid spreading, to respect the rules laid down by the government, including the 2 meter distance and the rules relating to gatherings . If an opening does not go well, there is a real risk of spreading COVID-19… and the risk of making many disappointed if the board of directors has to decide to reclose facilities due to not non-compliance the rules of social distancing.

There is hope

Several groups are trying to influence the government to allow these measures to be relaxed, because it is increasingly obvious that too restrictive confinement brings other issues and disobedience. Here are 2 interesting examples that could help us:

Professional condominium managers in ”solutions” mode

Our role is to find solutions to the problems experienced by our customers. So, be aware that professional managers who are members of the Association of Managers of Quebec Condominiums (AGCQ) meet virtually on Monday, May 25 to discuss the solutions to be proposed to the government to allow the opening of terraces and outdoor pools. As with other industries, we believe that bringing ideas to government could inspire it to lighten containment measures and above all encourage it to give us a clear message that it is possible to open up common outdoor spaces in condominiums.

In the meantime, we invite you to take advantage of the permitted places. To this end, here is an article that summarizes all of this for you: COVID-19: all about deconfinement measures in Quebec.

However, I invite all co-owners and citizens to respect the rules established by the government, because I sincerely think that it will be more inclined to relax restrictions more if there is no increase in contamination, because more than anything , the government must fear a second wave .

Élise Beauchesne, CPA, CA, Adm.A
SolutionCondo

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