Condominium governance and law, property, and global urban futures

Stefan Treffers and Randy K. Lippert

This volume set out to explore condominium governance and law as a conceptual and empirical domain through international case studies spanning nine countries. Its overarching aim was to bring together works that engage with this vast realm of condominium governance and law in global urban context and from several disciplinary perspectives. This reflected a need to move beyond the narrow lens of development that often consumes urban scholarship on condominiums and which overlooks vital aspects of this form of urban governance and life. This volume has peered in and beyond the physical edifices that accommodate this property form, probing the unique social and legal relationships, practices, rules, and nonns that shape and make possible condominium living and discerning the myriad challenges and barriers confronting it. This conclusion briefly outlines several lessons learned from the volume’s 15 chapters as well as how they might inform and inspire future scholarship. It reflects on four dominant themes and related ideas that traverse the chapters.

The first key theme that emerged is the tension between individual and collective interests inherent in the condominium’s bundling of private and common property. Hanis shows how the spatial, political, and temporal ‘embedding’ of property in a community of condominium owners has led coiuts and legislatures to grant new remedies for collective governance, such as the authority to expel owners from land due to chrome anti-social behaviour and curtailing owners’ ability to rent their units. These new governance tools reveal how well-established incidents of ownership, such as the exclusive possession and control over property, are being challenged and fundamentally altered in the name of collective interests and shared property arrangements. Similarly, Nielsen and Edlund elaborate how the balancing act by legislators to overcome what they call ‘built-in knots' intrinsic to the condominium concept has been an implicit goal of statutory reform in many countries. Van der Merwe sirggests too that statutory provisions such as those used to sanction chronic rule-breakers derive from a ‘social need’ to preserve social harmony and protect the rights of other condominium owners.

These chapters suggest the stability of the condominium arrangement partially depends on restricting or even suspending fundamental rights and freedoms traditionally associated with properly ownership. However, as Garfunkel demonstrates regarding surveillance, it is not always clear whose rights are at risk of

Condominium governance and law 267 being diminished when proposals to install surveillance technologies to protect owners’ interests undermine privacy rights of all owners and subject them to the surveillant gaze and discipline of property managers, and to some extent boards. The mining of surveillance inwards to regulate resident behaviour on the advice of property managers and security funis nonetheless reveals the demarcation between what constitutes individual and collective interests may not be so clear after all. This added complexity is interesting in several respects. First, individual and collective interests may be decidedly more intertwined than is often acknowledged. Furthermore, thinking of the tensions between individual and collective interests as a zero-sum game, where one must be privileged at the expense of the other, may overlook other interests that influence condommium governance including those of developers, property managers, and governments. Several chapters show there exists a range of actors who have a stake in defining what is in the collective interests of condommium conununities. Second, as Blandy points out in her chapter, owners are not always aware or accepting of collective nouns thought to make shared ownership successful. Rather, they construct and adopt diverse, everyday narratives of properly based on their own personal experiences, beliefs, and perceptions. Problems with multi-owned housing are not merely the result of poorly balanced or inadeqrrate laws but also of predominant individualistic and exclusionary narratives of property held by owners that are ill-suited for-shared ownership. Future research needs to explore this theme further, including how non-owning renters understand condominium property and how they are subsumed within its governing arrangements. This is especially pertinent as both short- and long-term renters increasingly occupy condominium space.

A second crucial theme that surfaced from the chapters is that dilemmas and challenges of condominium governance were remarkably uniform across the nine countries explored by the authors. For several authors, common dilemmas stem from inadequacies of legal frameworks and their failure to resolve stubborn problems, some of which derive from the inherent tensions between individual and collective property noted above. Problems related to mismanagement, fraud, undemocratic or authoritarian practices by condominium boards and owner apathy and free-riding are often characterized as problems of ‘self-government’. These difficulties are thought to breed additional problems such as mistrust between owners and governing boards, further fragmentation of owners’ sense of community, and highly litigious environments. However, as stated in the introduction, condominium governance is not entirely a separate private realm removed from the outside world, nor is it the exclusive preserve of condominium boards. The chapters reveal that rather than being insular, private, or enclosed, condominium governance is influenced by a plethora of external actors and forces. Lippert and Treffers, for example, show that developer control over governance often never ends once a development is ‘turned’ over to owners. Instead, developers employ a number of legal avoidance tactics to ensure that condominiums are governed in accordance with their interests. Additionally, chapters by Garfunkel, Gao. and Yip and co-authors highlight how hired property managers exert their influence over boards and owners, sometimes inverting expected hierarchies of power and authority entirely. The chapters by Easthope and Randolph and McKenzie demonstrate how speculative investors can pressure owners into redevelopment of then condominiums or how fraudulent investment practices can make some condominiums financially unfeasible, necessitating large-scale deconversions of condominiums and causing serious governance problems for owners along the way.

Perhaps one of the more intriguing lines of inquiry that emerged from this collection, and one which is deserving of further scholarly research and analysis, is how political or economic interests of governments become infused with condominium governance and law. It is widely recognized that condominium statutes in North America originated, in part, from desires of governments to increase rates of homeownership (Hanis 2011; McKenzie 2011). Yet Treffers suggests that beyond this role, governments today consider condominiums a key component of luring global capital flows and driving economic activity (see also Rosen and Walks 2013). In a slightly different vein, both Gao and Yip and co-authors uniquely discuss how China’s authoritarian state looms large over the daily governance of condominiums in attempts to assert political control at the grassroots level. Then' analyses lay the groundwork for further research into the different ways state power regulates the condominhun form, and more intriguingly how state power governs through it (see, for example, Lippert and Hamilton 2020). Together, these chapters also reveal the various actors external to condominium boards who view the condominium not merely as a place to live but also as a site to advance economic and political goals and reap profits. More research along this line is overdue.

A third key theme that should be highlighted were the similarities in the demand for as well as processes and outcomes of legislative reform across the urban contexts. Aside from some more conceptually focused contributions, many chapters either implicitly or explicitly indicated that condominium governance required major reforms. Several chapters interrogated how the prolific rise in popularity of short-term rental of condominium units has, in the adroit words of Leshinsky, ‘disrupted’ expected ways of condominium living. This disruption stems not only from large-scale technological changes resulting in widespread use of online sharing platforms such as Airbnb, but also from larger structural and economic changes that have coalesced with the growing appeal of condominhun properly as an investment vehicle. Nasarre-Aznar’s chapter similarly discussed how deep and protracted economic struggles since 2008 have significantly strained condominhun owners’ capacities to keep up with routine monthly fees supporting upkeep of common properly. The impending economic crisis exacerbated by the COVID-19 pandemic that promises to be even more severe will undoirbtedly question the resilience and viability of the condominium form in the years to come (see Lippert and Treffers 2020). Moreover, several chapters highlight the need for greater protections against abuses by industry actors such as developers and properly managers and where the need for public oversight of this realm is greatly warranted. But there is also considerable doubt among some authors as to whether statutory reform alone will help resolve these issues. Indeed, some chapters are obviously doubtful and suggest there may be limits to reform, such as Johnston’s, which argues that strata reform in Australia lacks reliability and rigour due to a dearth of prospective or retrospective evaluations. In exploring leasehold reform, Blandy contends that without adoption of property narratives that are better geared towards obligations and benefits of community cooperation, the relatively new commonhold system may be doomed from the start. Treffers examines new trends in regulation but ultimately expresses doubt too. Not dissimilar to early enabling condominium statutes which saw developers and governments play a fundamental role in then^- creation, today’s ‘architects’ of the new regulatory landscape, Treffers suggests, are very much in line with market-oriented regulations that seek to promote this form of ownership and protect industry interests rather than providing consumer protection. The chapter suggests that in spite of establishment of stand-alone regulatory authorities, there are concerns that this regulation has too narrowly focused on owners and their ability to self-govem their communities, allowing developers and other industry actors to escape its reach. The chapter by Lippert and Treffers similarly suggests that until condominium governance is confronted by regulators as a loose collection of myriad actors beyond boards and owners (Lippert 2019), the promise of real reform will be severely limited (see also Treffers and Lippert 2020). All of this suggests that future research and analysis should focus more on how legislative reform emerges, through what mechanisms and influences it evolves, and who benefits from it, by drawing on concepts and insights from the long-standing socio-legal studies tradition.

Notwithstanding commonalities across countries examined in this volume, legal frameworks for condominium and other forms of multi-owned property vary widely in accordance with social, economic, and political values and norms. These differences have thus generated new challenges particular to certain jurisdictions. The chapters by Gao and Yip and co-authors are obvious examples in this regard as they offer important, and often neglected, perspectives on condominium governance from the global south. Other chapters help highlight significant variation within the common law world. Sherry, for example, comments on how early incarnations of Australian strata legislation were absent of prohibitions on positive obligations on freehold land found in common law, allowing for largely untrammelled control over condominium property by developers and condominium boards with little judicial or legislative limit compared to the US. It is the legacies of these omissions that owners in Australia must now contend with. The resulting landscape however may not be too dissimilar, since as Lippert and Treffers show in North America, developer influence and control over governance persists despite various attempts to rein it in (see also Blandy and Wang 2013).

This brings us to our final theme of how the chapters in this volume speak to and foreshadow possible urban futures. Condominium governance and law has implications that extend far beyond its walls and has significant implications for neighbourhoods and cities. It is intimately connected to broader issues of economic development, organization of housing tenure, ongoing gentrification, affordable housing, and state intervention and regulation of private realms in urban regions. Chapters on embeddedness, redevelopment, deconversion, dissolution, and turnover point to an additional and neglected dimension of condominiums: their temporality.¹ The lifespan of a condominium may be finite, and this has important implications for how cities are planned, but these chapters collectively show that this is not merely a function of the age of a condominium's common elements or how quickly they deteriorate. Instead, the fact that a condominium is not taken over by owners when it should; does not last forever once formed; and can be dissolved and deconverted if the right forces converge reflect a temporality that is deeply implicated in governance and law and is shaped by relationships among owners, developers, investors, governments, and other actors. Chapters by Easthope and Randolph and McKenzie reveal how governance decisions can bring a condominium to the point where redevelopment or deconversion becomes the only viable option in light of chronic failures to maintain condominium property. Speculative investor’s might pressure owners to agree to, or even induce, these processes for private gain, and sometimes at the expense of local governments, which in Chicago’s case were obligated to absorb and deconvert failed condominium conversions. A successive deconversion trend in the city has increased rental housing supply, but at the expense of thousands of affordable owner-occupied units. The chapters also reveal the financial fr agility of the condominium arrangement and raise larger questions of their sustainability in cities. Much urban scholarship on condominiums to date has tended to focus on development, which comprises only a short moment nr the life cycle of condominium property and neglects more interesting questions of governance and law. This volume succeeds in extending scholarly inquiry to other significant moments of condominium governance and living that are of social and legal significance.

Condominium governance and law will shape our urban futures. Notwithstanding deconversion, a simple fact is that as condoization continues and condominiums become a more dominant residential form, more and more city-dwellers will become impacted by and subject to condominium governance and law. It is this and not so much changes in the built environment that has motivated this collection and that we argue will leave a more indelible mark on life in the city. Condominium governance and law is intimately felt by urbanites and immediately engages with and rules over myriad aspects of then everyday lives. Without major reforms, oversight, and more community-driven interventions and involvement (see Barton and Silverman 1994; Lippert 2019), it is likely many condominiums will continue to experience internal struggles, litigiousness, exploitation, fraud, surveillance, and external influence. Elements of authoritarian state control over and through condominhun governance foretell some dystopian possibilities that might await. Troubling is control and influence by developers and investors, but which it seems legislatures have little appetite for adequately addressing at present. More scholarship is needed on the relatively unexplored legal and social histories of condominium governance drawing from the insightfill chapters in this volume to understand the condominium’s possible urban future. Though perhaps too early to tell, COVID-19 and the ensuing economic fallout will likely have significant economic impacts on owners, as well as on cities if mortgage and common fee defaults become widespread. Future research could explore how

COVID-19 has affected governance processes and notions of conununity. Aside from the more troubling aspects noted above, it is easily forgotten that condominiums can be and are also spaces of sociality, cooperation, reciprocity, and sharing, but these do not necessarily derive from condominium statutes, nor are they consistent with dominant understandings of property.

Many of the volume’s contributions provoke complex questions about how the invented condominium form is altering conceptions about the role and function of property. Considering the plurality of interests involved in how condominium property was crafted and how it is currently being regulated, this volume also raises questions about who benefits from these constantly evolving property and governance relations. These four themes suggest condommium governance and law is a remarkably rich field ripe for future scholarship from several disciplinary perspectives. Ultimately this collection's sttccess will be measured by the extent to which it inspires and unearths such scholarship.

Note

1 One implication of this, following from the volume's introduction that draws fr om Lippert (2019), is that the definition of a condominium can be restated as a social, legal, spatial, and temporal relationship.

References

Blandy, S., and F. Wang. 2013. “Curbing the Power of Developers? Law and Power in Chinese and English Gated Urban Enclaves.” Geoforum 47: 199-208.

Barton, S., and Silverman, C. (1994). Common Interest Communities: Private Governments and Public Interest. Berkeley: Institute of Governmental Studies Press.

Hanis, D. 2011. “Condommium and the City: The Rise of Property in Vancouver.” Law and Social Inquiry 36 (3): 694-726.

Lippert, R. 2019. Condo Conquest: Urban Governance, Law, and Condoization in New York City and Toronto. ancouver: University of British Columbia Press.

Lippert, R., and C. Hamilton. 2020. “Governing through Human Rights and Critical Criminology.” Critical Criminology’ 28 (4): 5-11.

Lippert, R., and S. Treffers. 2020. “The Condominium's Grim Reapers: Coronavirus and Recession." Conversation, https://theconversation.com the-condominiums-grim-reapers-coronavirus-and-recession-135662

McKenzie, E. 2011. Beyond Privatopia: Rethinking Residential Private Government. Washington, DC: Urban Institute Press.

Rosen, G., and A. Walks. 2013. “Rising Cities: Condominium Development and the Private Transformation of the Metropolis.” Geoforum 49: 160-172.

Treffers. S., and R. Lippert. 2020. “Condominium Self-Governance? Issues, External Interests, and the Limits of Statutory Reform.” Housing Studies 35 (6): 1025-1049.