Posted on August 20, 2010 by Chris Jaglowitz

HST is painful for condos: The Proof (Part 1)

One overlooked but painful way in which the HST adversely affects condominium corporations is the fact that the maximum fee to issue a status certificate is fixed by law at $100 taxes included.

This fixed fee is set out in section 18(2) of O. Reg. 48/01 under the Condominium Act, 1998 which provides as follows:

The fee that a corporation may charge for providing a status certificate, including all material that is required to be included in it, shall not exceed $100, inclusive of all applicable taxes.

So how does this shake down in terms of dollars and cents?

A status certificate issued on June 30, 2010 that was subject to 5% GST would net the condo corporation $95.24.

That same certificate issued on or after July 1, 2010 that is now subject to 13% HST would net the condo corporation about $88.50, a difference of $6.74 from before July 1.

There’s no question that the cost of preparing a status certificate has not become less expensive, so it’s equally clear that condo corporations are obliged to suck up the difference. This can be painful for larger corporations that issue many dozen status certificates each year.

This regulation has not been amended to account for the introduction of the HST and its operation is unfair. A change is required immediately unless the Ministry of Finance wants to create another cockameme rebate program, this time to provide every condominium corporation in Ontario with a small rebate to make up a small fraction of the actual loss incurred on each and every status certificate issued.

My suggestion: In section 18(2) of O.Reg. 48/01 (above), replace the word "inclusive" with "exclusive." The change could be made in as little as 30 days if people in power put their minds to it. Seeing as how this amendment would actually increase tax revenue, it's astonishing why this has not already been done.

That aside, we’re almost two months into life after HST. How’s it working out for your condo corporation so far?

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Posted on October 6, 2009 by Chris Jaglowitz

Confusing numbering of parking and locker units will cause headaches later

In his regular real estate column in the Toronto Star, lawyer Bob Aaron recently reminded condo buyers to carefully review status certificates and watch out for certain common situations where the facts stated on the status certificate issued by the condominium corporation may not match reality.

One of those frequent pesky issues is parking and locker units that are numbered differently than their legal description. Mr. Aaron’s example is a parking unit marked in paint as number 99 but which is legally described on the deed as “Unit 53, Level A.”

Because they often do not take a walking tour of the parking units prior to signing the purchase agreement or closing the deal, most purchasers would simply assume from looking at their deed (for Unit 53, Level A) that they are the proud new owners of the parking unit marked as 53, only to find out later that they actually purchased the one marked as 99, which might have a much less convenient location in the garage.

It often happens that long-time residents discover that they have been using the wrong parking spot or locker for many years. We see situations in 20 to 30 year-old condo buildings where no one can accurately identify which parking and locker units belong to which owners (or to the corporation itself) because the painted numbers on those units do not match the legal description. The confusion is compounded where unit owners have sold the wrong parking or locker unit over the years or where the vendors sell the dwelling unit but forget to transfer the parking and locker units, in which case those units remain in the name of the vendor, or the previous vendor, or the vendor before that!

Such problems become even more serious where the condo declaration contains a schedule listing which parking and locker units are tied to each dwelling unit. Because condo corporations have a duty to uphold their declarations, it is difficult for the board to turn a blind eye to such irregularities, especially when purchasers can complain that they took title to their units in reliance upon the information contained in the schedule to the declaration.

Most problems of this sort surface during the sale of a unit when an observant lawyer for a purchaser checks the drawings, as Bob Aaron recommends, and finds the inconsistency. Invariably this takes place in the few days before closing, then the management office gets a frantic call by a selling unit owner who threatens to sue the corporation for interfering with the sale, etc, etc. The manager must then defer that day’s regular priorities and enlist the corporation’s lawyer to help sort out the problem on a rush basis.

So how is this kind of problem avoided?

Ideally, the situation does not arise at all because most reputable developers ensure that the numbering of parking and locker units in new buildings relates to the corresponding legal description. Unfortunately, not all developers are so conscientious, in which case it falls to the turnover board of the new condo corporation to rectify the problem.

Even more unfortunate is the fact that turnover boards are often deluged with more pressing first-year issues to tackle (like recovering budgetary shortfalls, conducting the performance audit, engaging professionals, etc.) and so the numbering of the parking and locker units is easily forgotten. The inevitable result is that the board will one day be required to deal with the situation, usually when it is least convenient.

In cases where a turnover board notices that the parking and locker unit numbering is significantly different than the legal description, one suggestion is to add this issue to the list of construction deficiencies to be taken up with the developer in the ordinary course during the first year after turnover. Hopefully the developer will solve the problem as part of a settlement of the case or may offer some amount as compensation for the necessary work to be done. Even if this problem is not ultimately rectified or paid for by the developer, the numbering issue will at least be on the board’s radar and can be corrected at an early stage.

If the numbering is not corrected, the board should, at the very least, ensure that the status certificates show the “commonly known as” numbering in addition to the legal description of parking and locker units, e.g. “Unit 53, Level A (Parking space 99)” or “Parking space 99, being Unit 53, Level A”.  

If your garage has multiple levels, then preface the parking space number with P1, P2 or as may be, so that it reads as: “Parking space P2-99.”

Dealing with this type of issue effectively in the first year or two of the condo’s life will save time, money and frustration down the road.  That said, it is never too late to try and clarify what might otherwise be a confusing item on your corporation's status certificates.
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