In a recent decision, the court examined what happens when a condo corporation fails to address a unit owners’ complaints of noise and vibration coming from the common elements.

The owner purchased her unit in 2010. It is the only residential unit on the ground floor next to a garbage room which housed a compactor. The building’s garbage chutes terminated into the garbage room. This created loud and intermittent crashing and tremors in the owner’s unit caused by heavy objects being thrown down the chute and loud noise and vibrations when the compactor motor was operating. The owner reported the issues to the condo in 2011 and by 2012, management conducted an inspection and found the noise to be “unbearable”. Few steps were taken by the condo to address the issues thereafter.

In 2018, new management took over and renewed interest in the owner’s complaints. The condo’s piecemeal efforts culminated in an inspection by the condo’s contractor in 2020 and a proposal for absorption and noise blocking material to be installed around the unit. Although the condo accepted its contractor’s proposal, the work wasn’t carried out and the owner brought an application for an oppression remedy under section 135 of the Condo Act. The condo then refused to carry out its contractor’s proposal when the owner started the court application.

Continue Reading Don’t drag your feet: Maintenance, repair and oppression

A Toronto condominium is making headlines after levying a $14 million special assessment. The condo’s 321 units were given 15 days to pay between $30,000 to $42,500. Many residents are seniors who see their units as their retirement home but the condo promised it wouldn’t enforce its liens before April…how generous.

The building needs major structural repairs and its finances are shocking to say the least. Last spring, the condo had a $5,000 operating fund and a whopping $1.75 in its reserve fund. The condo reportedly owes “as much as $9 million in debt” with $8 million owed to private lenders and another $1 million owed to the City of Toronto for unpaid utility charges – the condo pays $80,000 a month on interest alone.

This condo’s dysfunction predates the $14 million special assessment – it is one of the few condos that had a court-appointed administrator. Evidently this condo’s problems could not be solved even with an administrator. This is story should serve as a both a warning and a rude awakening for condos across the province: condominium operations are no joke.


Continue Reading $14M Special Assessments or: How I learned to stop worrying and take condo governance seriously

Condo boards and owners should be familiar with the concept of “common elements” and “units”. While there is no “one size fits all” approach to distinguishing the two, in simplified terms, anything that is not part of a “unit” is a “common element”. Diligent boards and owners should review the condo’s Declaration  for inclusions/ exclusions to and from the unit,  maintenance and repair obligations and Schedule “C” to determine unit boundaries; the condo’s registered plan drawings will lay that out in an illustrated form. Understanding these points is critically important.

In Landont Ltd. v. Frontenac Condominium Corp. No. 11, Landont Ltd. used their unit to operate a commercial parking lot. Landont and FCC 11 agreed that the concrete slab below the lot was a common element, but this case turned on whether a waterproofing membrane installed on the upper surface of the concrete slab was part of the common elements. The distinction fundamentally determined which party was responsible for maintaining and repairing the membrane.

Continue Reading Unit and common element boundaries: Not always as “concrete” as they seem

OOctober 1, 2019, the prompt payment and adjudication regime of the Construction Act (the “Act”) came into force to improve payment and cashflow to contractors on construction projectsThe changes apply to any contract between a contractor and property owner for the supply of services or materials for any alteration, addition or capital repair to the land (among other work)Any condo who is party to such a contract is subject to the “28-7-7-7” prompt payment clock and adjudication regime.   

The changes also amended traditional construction lien legislation, including the deadlines to preserve and perfect a lien and holdback releases  

This is Part I of our two-part series, where we explore how these changes impact construction contracts, specifically the CCDC 2 Stipulated Price Contract, and projects at condos now that we have had about 1.5 years (and a pandemic!) to reflect on it 


Continue Reading Construction Act impact on condo projects  

Lozano v. TSCC 1765 was one of our Top 10 cases for 2020 because it reaffirmed that a higher negligence threshold is not applicable for s.105 chargebacks. You can read a summary of the case in our newsletter, Condo Alert!, Winter 2020

 Lozano’s insurer (who paid the insurance deductible) appealed the 2020 decision, asking the Divisional Court to re-write s.105 of the Condo Act and adopt a “robust” negligence test for liability under that section. The court rejected this proposal and dismissed the appeal a few days ago. 

Continue Reading Never mind the ballcocks, here’s the shut-off valve 

A brand-new Occupiers Liability Act provision requires Notice to be given by a person injured by ice or snow on privately-owned property, within 60 days after the date of injury.

That Snow/Ice Injury Notice must describe in writing the location, date, time and circumstances giving rise to the injury.  The Notice must either be sent

The massive ice storm that recently devastated the Toronto area felled whole trees and large branches.  This damage to the urban canopy knocked out electrical service to hundreds of thousands of people and caused untold property damage.

Icestorm2013

With the post-storm clean-up now underway and expected to last several weeks, condominium managers may need guidance dealing with trees that fell from neighbouring properties onto condominium common elements.

Ownership of a tree is usually clear-cut – trees belong to whoever owns the land on which the tree is situated. If, however, a tree’s trunk is growing on the boundary between adjoining lands, section 10(2) of the Forestry Act provides that the tree is the common property of both owners.   But what is a trunk?  Luckily, the Ontario Court of Appeal released a decision just a week before the ice storm clarifying that, for the purpose of the Forestry Act, the “trunk” is “that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage.”

Continue Reading Fallen trees – Don’t be a sap