Posted on February 11, 2010 by Chris Jaglowitz

Best of the blogosphere for January 2010

In case you spent January at the gym or fulfilling other resolutions for the new decade, here is our mini-digest of noteworthy condo-related posts from the blogosphere last month.

Enjoy the Family Day long weekend!   

Records Retention: Going Paperless through E-Archives -- Paper is so passé! Marilyn Perez-Martinez of the Florida Condo & HOA Legal Blog describes some of the critical considerations in devising an electronic archive process for storing a condo’s records.  The key is in preparing a sound plan.

A Building Component does not become Common Area just because it was placed or built on the Common Area -- California HOA attorney David Swedelson blogs on a recent appellate case that sounds strikingly similar to our Court of Appeal’s ruling in Wentworth Condo Corp. 198 v. McMahon.   

Recognizing the Fraud Triangle -- Increase your vigilance. Florida condo lawyer Donna Berger highlights some telltale signs of fraud and how to spot them. 

CCAL Seminar -- The Case Law Update – Utah condo lawyer Lincoln Hobbs blogged about the presentation of the past years' top condo/HOA cases at the US College of Community Association Lawyers' annual law conference. Other seminars were reported, including CCAL Law Conference -- The Unauthorized Practice of Law.

The 2009 Home Renovation Tax Credit and Condominiums – It’s tax season again, and property manager Tracey McLellan offers some suggestions for reporting and claiming the HRTC.  

Dealing With "the Crazies" Within a Homeowner Association -- Daniel Zimberoff at the Northwest Condo & HOA Law Blog offers some advice for what is probably a remarkably rare situation that is seldom faced by condo boards and mangers. 

The Sword, the Shield, and the Guide - Working with the Association's Attorney -- Kevin Britt of the Seattle Condominium and Homeowners Association Attorney Blog identifies and describes three distinct roles that a lawyer can fill when acting for a condo or community association.

Make indoor air quality test a standard part of real estate purchases -- Bob Aaron notes that people are becoming increasingly aware of the dangers of radon gas but that indoor air quality is not yet dealt with as part of real estate transactions. He also describes a number of ways to test for radon.
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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 November 27, 2009 by Chris Jaglowitz

Papers from ACMO Legal Grab Bag Luncheon

Here are the papers from the ACMO Legal Grab Bag luncheon held November 27, 2009.   

Click the bolded names of the authors to view the papers in PDF.   To save the files, right-click on the bolded names and "save as" onto your computer.

David Di Lella of Horlick Levitt on what constitutes an “addition, alteration or improvement.”

Marko Djurdjevac of Deacon, Spears, Fedson & Montizambert on altering common elements to accommodate persons with disabilities.

Karen Kisiel on the latest oppression remedy case.

Kevin Inwood of Heenan Blaikie on preventing workplace harassment and violence.

Michael Pascu of Fine & Deo on how to enforce the declaration and rules in tenancy situations.

You can download all of these papers in a single ZIP file here.

Thanks again to all of the speakers for taking the time to make such excellent presentations and to prepare these helpful papers.  

From all of us on the panel, thanks to everyone who came out today!   Contact any of us if we can be of help to you.

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Posted on July 27, 2009 by Chris Jaglowitz

Modifying exclusive use common elements to accommodate disabilities: Who pays?

A June 2009 decision of the Ontario Human Rights Tribunal offers useful guidance about who is responsible for the cost of making exclusive use common elements accessible for persons with physical disabilities.

In McMillan v. Bruce Condominium Corp. No. 6, the condo complex consisted of 32 one-story detached townhouses. The balconies, yards and entrances to the units were designated in the declaration as exclusive use common elements, which is typical of such communities.

The entrances to the units were built with two exterior wooden steps extending from the landings at the front and rear of each townhouse. The landings were built with railings but the steps were not.

Over time, a unit owner developed mobility problems and became unable to enter the unit safely without assistance. The owner consequently asked the Board to install hand railings on the steps at both entrances to the unit.

The Board responded by giving the owner permission to install the railings at her cost. The owner took the position that the corporation was responsible for the cost and was obliged to accommodate her physical disability by installing the railing itself. The owner then complained to the Ontario Human Rights Tribunal that the corporation had contravened the Human Rights Code by failing to install the requested railings.

The Tribunal heard evidence that similar requests to install railings had been made and granted to owners in the past on the basis that the cost of the work be paid by those owners. The evidence also showed that the owner in question had previously asked for and received permission to install a shed and a hot tub on her exclusive use common elements and that she had paid the cost of those items.

The Tribunal noted that the condominium declaration contained the following typical clause:

No alteration, work, repairs, decoration, painting, maintenance, structure, fence, screen, hedge or erection of any kind whatsoever (the work) shall be performed, done, erected or planted within or in relation to the common elements (including any part thereof over which any owner has the exclusive use) except by the corporation or with its prior written consent or as permitted by the by-laws or rules.

The Tribunal also considered section 98(2) of the Condominium Act, 1998, pertaining to changes made by owners where the change or alteration relates to a common element over which the owner has exclusive use. That section permits such changes if the Board is satisfied that the proposed addition, alteration or improvement:

a)  will not have an adverse effect on units owned by other owners;
b)  will not give rise to any expense of the corporation;
c)  will not detract from the appearance of buildings on the property;
d)  will not affect the structural integrity of buildings on the property; and
e)  will not contravene the declaration or any prescribed requirements.

After considering the evidence and the interplay between the declaration and section 98 of the Condo Act, the Tribunal dismissed the complaint on the basis that:

...the [unit owner] has not experienced discrimination on the basis of disability and that [the Corporation] did not contravene the Code when the Board refused to pay for the installation of hand railings on the front and back steps of the Unit. The circumstances of this case are distinct from a condominium corporation's obligation to make common areas accessible. [The Corporation] approved the request to install hand railings within its authority but it is not responsible for areas defined as common elements that fall within a unit owner's exclusive use.

The Tribunal also correctly observed that a change made to the common elements to accommodate a disability is no different than, for example, the installation of a shed or a hot tub. The fact that a change is necessary to accommodate a disability does not change the obligations set out in the declaration or the Condo Act.    
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