Can a condo board prevent owners from soliciting for proxies?
When an owner, or a group of owners, get upset about an issue or decide
to run for a seat of the board of directors, and they leave a leaflet
at the resident's doorways or knock on the doors to request support or
to collect proxies, it is common for the property manager to demand
that the persons stop as they are in violation of the condo's "No
At times, the owner(s) may receive a cease and desist letter from the
condo corporation's lawyer. There may be a demand that the owner pay a
few hundred dollars, the cost of this legal letter or face a lien on
A demand letter for paying for a legal letter is pushing it as I am not
aware of any judge in Ontario forbidding candidates from election
canvassing involving condo issues in a condo's common elements.
Get legal advice
At this point, the owner(s) have to decide whether to stop opposing the
board or to sue the condo corporation. To make this decision, I urge
them to get a legal opinion from a lawyer who is experiencedin condo law.
Entry by canvassers
Section 118 of the Ontario Condo Act states:
No corporation or employee or agent of
a corporation shall restrict reasonable access to the property by
candidates, or their authorized representatives, for election to the
House of Commons, the Legislative Assembly or an office in a municipal
government or school board if access is necessary for the purpose of
canvassing or distributing election material. 1998, c. 19, s. 118.
So the politicians took care of themselves by making sure the Condo Act
guaranteed that they can talk to the voters but they left condo owners
to fend for themselves.
Adding salt to our wounds, Ontario’s Election Act has been updated
to establish administrative penalties starting at $500 for first-time
infractions and escalating up to $1,000 and $2,000 for second and third
infractions, respectively to condos who do not allow political
candidates and their volunteers the right to canvass door to door and
in common areas in multi-residential buildings that have seven or more
Relief in the courts
For most homeowners, going to court is cost-prohibitive. The condo
industry knows that, and counts on the owner dropping the issue by
either complying or selling and moving out.
Yet at least in New Jersey, the supreme court ruled that at co-op board had no authority to stop co-op members from distributing campaign literature.
NJ Supreme Court ﬁnds that co-op board violated owner’s
rights by denying distribution of campaign leaflets for association
In 2008, Robert Dublirer contemplated running for election to the
cooperative Board. In order to inform other owners in the 483-unit
association of his qualifications and reasons for wanting to serve on
the Board, Dublirer had created a leaflet, which he intended to
distribute by sliding under the doors of each unit.
But the Board required “permission” and then denied Dublirer the right
to distribute his campaign leaflets, citing Co-op rules against
“littering” and disruption of privacy of unit owners. However, the
Board distributed its newsletters in the same fashion, and included
remarks critical of Dublirer in its communications with Co-op members.
Dublirer is a former criminal prosecutor in the state of NY, and represented himself in court.
The NJ American Civil Liberties Union (ACLU) filed an Amicus Brief on
behalf of Dublirer. The ACLU argued that the Court should uphold an
appellate court’s ruling in favor of Dublirer because property rights
of an HOA are not absolute, and must yield to “fundamental individual
rights.” The HOA is not entitled to dominion over its residents.
Citing State v. Shack (1971), this particular passage sums it up quite well:
“Property rights serve human values.
They are recognized to that end, and are limited by it. Title to real
property cannot include dominion over the destiny of persons the owner
permits to come upon the premises. Their well-being must remain the
paramount concern of a system of law.”
ACLU argued, and the NJ Supreme Court unanimously agreed, that
Constitutional rights to free speech and expression outweigh private
interests of the Co-op Association, particularly with regard to
Rules cannot restrict “too much speech,” by making it inconvenient,
difficult, or unlikely that residents can exercise their rights without
breaking a rule.
The Court made an important distinction between people who reside on
the premises and third parties who visit, with regard to applicability
of Constitutional protections for free speech and assembly.
In essence, the Court has concluded that those who reside in the Co-op
constitute its public, and therefore, political speech of its residents
cannot be excessively restricted in the common areas.
Each resident must have equal access to the political process, and the
Board cannot use rules and restrictions to skew the process to its own
Ref: N.J. Supreme Court: Fort Lee co-op board violated man's
free-speech rights in leafletting case, NorthJersey.com Dec 3,
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