Ontario Condo Law Blog : Toronto Condominium Lawyer & Attorney : Gardiner Miller Arnold Law Firm : Ontario, Ottawa, Hamilton, Kitchener

The transitional details are simple enough. Section 32 of the new Public Inquiries Act, 2009 provides that inquiries commenced under the prior Act will continue to be governed by that prior Act. Inquiries commenced (or condominium inspectors appointed) on or after June 1, 2011 will be subject to the Public Inquiries Act, 2009.

The appointment of a condominium inspector is rare, but we know that one is currently working at MTCC 710 in Toronto. This was a problem condo we reported about in April 2010, when an application to appoint an administrator was pending and later granted by the Superior Court under section 131 of the Condo Act. That administrator subsequently applied for and was given an appointment as an inspector under section 130 of the Condo Act in an unreported decision dated January 5, 2011. One would presume that the administrator required the powers of an inspector to investigate possible irregularities in the finances or records of that condominium or gather information needed to properly administer that condo's affairs.

Because of the extraordinary high cost of appointing someone as an administrator or inspector and then the cost of that person fulfilling their mandate, appointments under sections 130 and 131 are best reserved for the most dire situations as a final option or where the amounts at issue are extremely large. Even where the need is great or the cost is justified, the sad fact is that these appointments are no more than a reactive measure to try and fix a situation that has gone horribly wrong and which has probably arisen because adequate preventative measures and vigilant oversight by owners and auditors did not exist or have failed.

If an inspector has been or is sought to be appointed at your condominium, your condo is quite probably in serious trouble and you should closely monitor the situation, band together with a group of concerned neighbours and get legal advice.

If you are a prospective purchaser and notice in the condominium status certificate that an inspector has been appointed over the corporation under section 130 or that such an application is pending in court, you may wish to seriously consider your purchase before the deal becomes firm. Run, don’t walk, to your lawyer’s office.

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.