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 Soliciting" rules.

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 their unit.

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 units.

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 election

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 political activity.

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 advantage.

Ref: N.J. Supreme Court: Fort Lee co-op board violated man's free-speech rights in leafletting case,  Dec 3, 2014

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