Posted on May 15, 2010 by Chris Jaglowitz

Best of the blogosphere for April 2010

It's time once again to sample some of the best condo-related news from the blogosphere.

Spring has different meanings to different people – With winter behind us, it’s time to get to work on the year’s maintenance and reacquaint yourself with your neighbours.   Hats off to the Community Associations Network blog for some pleasant seasonal tips!

Owner posts website about his HOA problems and gets sued – The title says it all.   Check out the story and follow the links to the offending website to see what all the noise is about and whether you can get to the bottom of the million dollar question... oops, I mean “lawsuit.”

Proper Protocol for a Board’s Use of Emails – Everybody and their brother uses email these days and condo boards are no exception. Donna Berger offers some practical guidelines to avoid typical problems arising from condo boards use of email.

Condos/HOAs Have a Lot to Lose if Design Professional Protection Bills Become Law – Imagine if you couldn’t sue architects, engineers or surveyors if their negligence affects your condo.  That nightmare scenario may come true in Florida if legislators don’t give their heads a good shake. Sanjay Kurian sounds the alarm.   

Condominiums and Second Hand Smoke Claims – Mark Wiechnik of Stark & Stark summarizes the leading cases on second hand smoke in condos, including a Canadian case, and offers his prediction of what may result and how those cases might impact condos in New Jersey (and everywhere else!).

Spiteful Conduct by Board Member – This Q&A on the Virginia Condo and HOA Law Blog offers some guidance on the potential liabilities that arise by vindictive conduct of a board member.

 "Not by the Hair of my Chinny-Chin-Chin!" – Is this the answer your manager gets when trying to make entry to a unit?   Check out California lawyer David Swendelson’s suggestions before huffing and puffing.

When Condo Fires Strike...... – Lawyer Stuart Lieberman recites some of the considerations that come to mind when you put “fire” and “condo” in close proximity to each other.

Keeping Your Association Afloat: Implementing Hardline Collections Tactics – Effective collection of common expenses is critical.   Sarah Lappin at the Vial Fotheringham blog suggests that misguided soft-heartedness shouldn’t be allowed to destroy your condos finances.  

CMCA Program Achieves National Accreditation – The Community Associations Institute announces on their Ungated blog that their professional designation for community association managers (“CMCA”) has received special national recognition. Congratulations to CAI on this achievement!

The Challenge of Structural Distress in Aging Buildings – Florida condo construction litigator Alan Tannenbaum warns that most Florida condos are unlikely to meet the 50-year lifespan predicted by studies. He offers advice on how to stretch out those years.

Lenders and Squatters Accessing Homes Prior to Foreclosure -- Daniel Zimberoff of the Northwest Condo & HOA Law Blog highlights a common problem facing American community associations in areas where the housing market crisis shows no signs of abating.
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Posted on December 31, 2009 by Chris Jaglowitz

Top 10 condo law cases of 2009

As 2009 drifts into the history books, we look back at some of the notable condo law decisions made by Ontario courts and tribunals in the year gone by.

Here are ten of them, in no particular order.  Click the bolded case names to view full text decisions at Canadian Legal Information Institute ("CanLII").

#1 - Nipissing Condominium Corporation No. 4 v. Kilfoyl, 2009 CanLII 46654 (ON S.C.)
Corporation obtains a compliance order against owners operating a boarding house in violation of the “single family residence” provision in the declaration. The owners unsuccessfully claim that the case must first be mediated/arbitrated (as per Condo Act s. 134(2)), and that the single family use provision violates the Human Rights Code. The case is now under appeal.

#2 - Metropolitan Toronto Condominium Corporation No. 1250 v. Mastercraft Group Inc, 2009 ONCA 584 (CanLII)
The Court of Appeal makes important rulings on the following interesting issues in this nightmare case over a conversion building:

  1. When does a subsequent landowner become a “declarant”
  2. Whether fixtures can be separated from common elements by the declarant and then leased to the condo corporation
  3. What factors must be considered in determining whether a construction warranty is breached.
  4. Whether the right to rent a parking spot is an easement appurtenant to each residential unit

Application for leave to appeal this case has been made to the Supreme Court of Canada [and dismissed].

#3 - Carleton Condominium Corporation No. 26 v. Unit Owners, 2009 CanLII 22548 (ON S.C.) Condo successfully applies to amend its declaration in order to fix inconsistencies over the maintenance/repair obligations and boundaries of the units. Good discussion about Condo Act sections 107 and 109 and about how to properly set the stage for bringing such an application.

#4 - Ottawa-Carleton Standard Condominium Corporation No. 650 v. Claridge Homes Corporation, 2009 CanLII 25983 (ON S.C.)
Court rules that a condo corporation can sue Tarion for payment out of the guarantee fund for construction deficiencies, and that the claim against Tarion can be made with or without the declarant. Filing the performance audit under Condo Act section 44 is the only prerequisite.

#5 - 1240233 Ontario Inc. v. York Region Condominium Corporation No. 852, 2009 CanLII 1 (ON S.C.)
In this case about a shopping mall converted to a commercial condominium corporation, a unit owner applied unsuccessfully for an oppression remedy when asked to contribute to the mall’s promotional fund. The court found that the corporation can spend money from the common expenses fund on promotions and marketing. Such expenditures are consistent with the duty to manage and administer the corporation.

#6 - Wentworth Condominium Corporation No. 198 v. McMahon, 2009 ONCA 870 (CanLII)
The central issue was the meaning of the words “addition,” “alteration” and “improvement” as in Condo Act section 98. The Court of Appeal upheld the trial judge’s ruling that installing a hot tub is not an addition, alteration or improvement to the common elements. The court pointed out that some cases may require a different approach and that each case must be considered individually.

#7 - McMillan v. Bruce Condominium Corporation No. 6, 2009 HRTO 878 (CanLII)
The Human Rights Tribunal dismissed an owner’s complaint that the corporation violated the Human Rights Code by requiring the owner to pay the cost of modifying the common element stairway to his townhouse in order to accommodate his disability. See our case comment here.

#8 - DiSalvo v. Halton Condominium Corporation No. 186, 2009 HRTO 2120 (CanLII)
The Human Rights Tribunal ordered a condo corporation to install and pay for a modification to an owner’s exclusive use common elements in order to accommodate that owner’s disability, quite contrary to the ruling in McMillan v. BCC 6, above. The tribunal also fined the corporation $12,000 on the basis that the corporation violated the owner’s human rights in poorly handling the owner’s request for accommodation. This December 2009 case will get close review and further comment in the weeks ahead.

#9 - Metropolitan Toronto Condominium Corporation 626 v. Bloor/Avenue Road Investment Inc., 2009 CanLII 44718 (ON S.C.)
Interesting municipal law case about a mixed-use complex with shared parking and a screwy site plan agreement and zoning by-law. When the parking lot owner jacks up the parking rates, the residential condo owners sue for a declaration that a certain number of the spots are allocated to them. The court disagreed.

#10 - Metropolitan Toronto Condominium Corporation No. 932 v. Lahrkamp, 2009 ONCA 362 (CanLII)
A unit owner who made incessant requests for records and harassed board and management staff was ordered by the Superior Court to stay away from the management office and to follow a special procedure for requesting records. On appeal, the Court of Appeal set aside the restraining order as being too extreme for these circumstances but affirmed the rest of the order.   We commented on the original decision here. 
 

One decision from late December 2008 also deserves mention.

Metropolitan Toronto Condominium Corporation No. 946 v. J.V.M., 2008 CanLII 69581 (ON S.C.)
Condo corporation obtains a court order to sell a unit owned and occupied by a person with mental health issues who had breached previous court orders requiring the owner to rectify unsafe and unsanitary conditions. Court found that the corporation had done its best to accommodate the owner’s disability.

Did we miss any cases that you would include in this list?   Let us know!

Thanks for following our blog this year. All the best for 2010.
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Posted on July 22, 2009 by Chris Jaglowitz

Chinese drywall threat seems distant -- for now

Toronto lawyer and Tarion director Bob Aaron says that toxic Chinese drywall "may become the biggest environmental crisis to hit North American homeowners and builders in decades."

The defective drywall is decidedly carcinogenic and may be radioactive. This product emits noxious sulfuric gases that can damage HVAC components and corrode electrical wiring inside of walls. Not surprisingly, these gases pose a serious threat to human health and can render affected homes uninhabitable. Any home owner or condominium corporation faced with Chinese drywall in their home or building faces a daunting challenge and must consult quickly with engineering, health and legal experts.

Thankfully, relatively little of this defective product was imported into Canada and only a tiny portion may have found its way to Ontario. No significant cases have yet been reported in Ontario.

In contrast, the problem is quite widespread in the Southern U.S. and has spread north, generating a large-scale response by lawmakers, consumer protection watchdogs and construction litigation attorneys. Protective laws are being passed and multiple class action lawsuits are already underway.

Considerable information on the topic is available in the blogosphere, particularly by American construction law attorneys. An entire section is devoted to Chinese drywall at The Construction Litigation Blog of Stark & Stark in New Jersey and a Chinese Drywall Blog was recently launched by Wolfe Law Group of Louisiana and Washington states. Both are good resources.

We'll be watching for local developments. Post a comment below with any news or tips you may have.

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Posted on November 15, 2008 by Chris Jaglowitz

Gehry on Construction Deficiencies

The newly-transformed Art Gallery of Ontario opens its doors this weekend.   The Globe and Mail reports that the final ($276 million) product has met with the approval of its designer and world-famous architect, Frank Gehry, although he would make a few changes if more money was available.

At about this time a year ago, the famous architect and his firm were named as defendants in a lawsuit for alleged defects in a new building commissioned by the Massachusetts Institute of Technology.     The construction company was also sued and the accusations began to fly as to whether the defects were the result of the architecture or the construction. 

In responding to MIT’s lawsuit, Gehry told the New York Times that problems in complex buildings are inevitable, and that:

A building goes together with seven billion pieces of connective tissue. The chances of it getting done ever without something colliding or some misstep are small.

In commenting on that lawsuit and the parties’ response to it, lawyers at Stark & Stark in New Jersey made this observation in their Construction Litigation Law Blog:

It is disconcerting to see that a superstar architect, a global construction company and a world-class institute of higher learning, with $300 Million to spend cannot seem to create a water-tight building. Mr. Gehry seems to think that construction defects are par for the course. In that context, it comes as no surprise that we find problems with much simpler, mass-produced homes and condominiums.

The moral: First-year condo boards in a newly-constructed buildings should budget time and resources with the presumption that there will be defects and deficiencies that need to be addressed.  

Be sure to visit the AGO.

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