WELLNESS In Your Community By Robert M. Mullin, - Association of ...

WELLNESS In Your Community
Navigating
Legal Services
By Robert M. Mullin,
BA (Hons.), LLB, LLM,
ACCI
© khz/Bigstock.com
FOR MANY condominium
boards or property managers, the
very thought of bringing in ‘the
lawyer’ can be an uneasy one. Few
professions evoke as many preconceived
notions. The brunt of endless
jokes, lawyers are often generalized
as over-billers, ‘the hired guns’, or as
having less than a cosy relationship
with the truth. As a result, when
trouble inevitably arrives, for many
condominiums calling the lawyer is
the grudging remedy of last resort,
not the first.
This article is intended to give
some tips to condominium boards
and property managers when the
time comes to deal with their lawyer.
It is hoped that knowing how to
successfully navigate legal services
will leave condominium boards and
property managers more prepared
for getting help when they truly need
it, and being satisfied with the services
received.
CM CONDOMINIUM MANAGER MAGAZINE, SPRING 2012 ■ 45 ■

■ Build a Relationship
We all know that finding a doctor
when you are sick is nearly impossible.
Building a personal relationship
early with the professional who
will take care of you can pay big
dividends. The board should see the
corporation’s lawyer as a trusted advisor
and someone they enjoy talking
to, even if the circumstances of the
conversation are less than ideal. This
type of relationship allows you to use
your lawyer to avoid problems before
they start and to think of creative, tailored
solutions when they do. A professional
giving proactive advice is
far superior to one providing reactive
advice in an emergency. Although
you may find a lawyer to assist you
during a crisis, the timing and effort
needed may be high.
■ Meet the Team
Keep in mind that behind every
great lawyer is a great team. Your
lawyer should encourage you to meet
the lawyers, articling students, law
clerks and assistants who will work
on your matter. Feel free to ask your
lawyer what tasks they may delegate
to these team members. Consider carbon
copying clerks on your emails as
they may be able to provide a quicker
response. Your condominium deserves
professional service at all stages
of the legal process and your confidence
in the entire team is important.
Furthermore, when your lawyer is
temporarily unavailable, it is these
team members who will be there to
help you. Law firms with a strong
team work ethic will pull together on
your behalf to get things done.
■ Set Fees Upfront
At the beginning, always be upfront
and inquire about the legal fees.
Often a problem will erupt, and the
property manager will call the condominium’s
lawyer. Despite the repeated
letters from the property manager, a
unit owner continues to let his stereo
reach glass-breaking volumes. The
lawyer diligently takes notes during
the phone call, the property manager
asks for a strongly worded legal letter,
and the conversation ends. Both
the lawyer and the property manager
have assumptions as to how much
this letter will cost. There is an old adage
about assumptions, and it holds
true here as well. Unfortunately, for
many, talking about money can be
a touchy subject. When retaining a
lawyer, it never should be. A lawyer
should not be offended if they are
asked “and how much do you think
the fees on this will be?” The goal
is to avoid an invoice that surprises
the property manager, offends the
board and leaves someone having an
uncomfortable follow-up with the
lawyer. Avoid problems down the
line upfront, and nail down the fees
at the start.
■ Flat Fees
Many lawyers in Ontario are beginning
to offer flat fee service. When
you hop into a cab, the meter starts
to run until you either reach your destination
or run out of money. Oddly,
when you call an airport limo, the fee
is set up-front, despite traffic jams or
unexpected detours. Always ask the
lawyer if a flat fee is possible. For
many condominium legal services,
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■ 46 ■ CM CONDOMINIUM MANAGER MAGAZINE, SPRING 2012

the lawyer will have a general understanding
or experience on what it
will take to arrive at the destination.
Drafting a standard unit bylaw, writing
an opinion letter, or amending a
declaration normally have a predictable
path. Ask if a flat fee arrangement
is possible. Although similar
to nailing the fees down upfront, flat
fees often involve a formal arrangement,
often for larger projects.
■ Make it Easier
Recently a property manager sent
me an enforcement file. A unit owner
had habitually caused noise, disturbing
the peace for a number of unit
owners. A quick phone call from the
property manager was followed by a
package in the mail. The package had
a one-page overview of the matter in
bullet form. Attached in tabbed format
was a copy of the condominium’s
declaration, bylaws and rules, followed
by all of the complaint letters,
follow-up letters, invoices incurred
to date, and handwritten notes from
the property manager’s phone calls.
My job was cut in half, as was the
condominium’s bill. If you can, make
it easier for the lawyer and the fees
will reflect it.
■ Experience and
References
Lawyers are infamous for procrastination.
I am humble enough
to admit I have been afflicted from
time to time. I find procrastination
often strikes when a lawyer is neither
comfortable nor experienced
with the work that is on his or her
desk. These files are often passed
over for the work in which the lawyer
has a high level of comfort and
background. Do not be shy to ask
the lawyer if he or she has done a
particular area of work before. It
does not have to end the relationship
if the lawyer has not done the
particular area of work before, but
be sure to inquire what steps and
timetables the lawyer will keep to
ensure the work product is delivered
on time. In addition, consider asking
for references. Lawyers are professionals
and as such should take pride
in their work.
■ Confirm Timelines
In keeping with this theme, always
confirm timelines. Either send
the lawyer a confirmatory timetable,
or ask that they provide such to you.
It takes a few minutes, but it will put
everyone on the same page.
■ Review Drafts
When instructions are given to a
lawyer to prepare a legal document,
often the property manager or board
of directors only see the product
when it has already flown. The enforcement
letter is carbon copied
to the board or the statement of
claim was already issued and served.
Some condominiums have very close
and longstanding relationships with
their lawyer. Some property managers
know what and how the lawyer
will write before the lawyer does.
Those relationships and abilities to
anticipate are valuable. Do not be
afraid to ask and review drafts before
they go out. This review should
be with particular emphasis on the
facts. Although condominium lawyers
may be immersed in the Con-
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CM CONDOMINIUM MANAGER MAGAZINE, SPRING 2012 ■ 47 ■

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dominium Act, 1998, or the case
law interpreting it, they do not live
the fact. Double check their work,
especially for factual references or
applicability.
■ Budget
Regrettably, all condominiums
will need the services of a lawyer at
some point. From updating condominium
documents, collecting arrears
or assisting with enforcement,
the use of a lawyer is unavoidable.
That said, many condominiums do
not budget for annual legal services.
While some do, the annual budget
for such services equals that for office
supplies. Recognize and anticipate
that legal services will be needed. If
there is a budget allocation for them,
both the board and the property
manager may be less uneasy when
acquiring legal services. Otherwise,
it is a routine reaction of “we don’t
have the money”, followed by pulling
funds from other needed budget
items. Perhaps look at the total cost
of legal services incurred by your
condominium over the past three
years, average it and add that to
your next annual budget. If you do
not need the funds, a reserve fund
top-up awaits. If you do, you will
be thankful that you had the money.
■ Conclusion
Always remember that your lawyer
should be completely committed
to providing you with professional
service. They should be your partner
in making your condominium a
fantastic place in which to live. Following
these suggestions will hopefully
provide a solid foundation for a
positive relationship and better legal
outcomes for your condominium
community. ■
Robert Mullin, BA (Hons.), LLB,
LLM, ACCI is a chair of the Smith-
Valeriote Law Firm LLP Condominium
Practice Group in Guelph.
Robert practices extensively in the
area of condominium law and development.
Robert currently serves
as chairman of CCI’s Golden Horseshoe
Chapter. He can be reached at
rmullin@smithvaleriote.com. Special
thanks to Michelle Kelly and
Evan Valeriote.
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■ 48 ■ CM CONDOMINIUM MANAGER MAGAZINE, SPRING 2012