Tony Bui

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A Toronto condominium corporation finds itself in the news lately (link to article here) over a hotly-contested election.

Two unsuccessful candidates brought a legal proceeding claiming election interference after they won on an initial count by a slim margin of two votes but lost on a recount. The candidates claim their proxies were disqualified without reason and votes were illegitimately added the ballot box. In the wake of a close election we often see accusations of conspiracy, corruption and impropriety thrown around. In this condo’s case, this has resulted in a nasty legal battle: both sides reportedly incurred at least $200,000 in legal fees so far.

While the truth remains to be seen, the financial and time cost devoted to determining who’s right seems extreme; the issue is clearly important to those involved and it is up to the parties whether to continue the battle.  Whatever the case may be, Tony’s Takeaway is that these problems are avoidable.

Whether meetings are held electronically or in-person, here are a few best practices we suggest to ward off accusations of “stolen elections” or demands to “stop the count”:

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Continue Reading Condo elections, dodging “fake news” and voter fraud

The Superior Court of Justice recently raised an interesting question: can a condominium corporation foreclose on a unit to enforce its lien? While the Court didn’t answer the question, raising the question seemingly casts doubt on what a corporation can or can’t do to enforce a lien. Fortunately, we don’t have to wait for another case to get our answer: earlier decisions have made it clear that a condominium lien can be enforced through foreclosure.

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Continue Reading “Like a Mortgagee”: no uncertainty with condo liens and foreclosure/power of sale

When condo owners get hit with a lien, things typically go one of two ways: the owner pays the lien and everyone moves on with their life or the owner disputes the lien and a contentious battle ensues. A registered lien secures “reasonable legal costs and reasonable expenses incurred by the corporation to collect the lien” per section 85 of the Condo Act. Corporations often turn to their lawyers in lien battles and recoverable legal costs and expenses begin to mount.   One owner recently learned that lesson the hard way.

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Continue Reading Lien challenges: applying pressure doesn’t stop the bleeding

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

Most  condos  now conduct business through electronic meetings, which can be recorded by the host.  Meeting recordings are not a novel concept but our recent dependence on electronic meetings has given them new life.  Minute takers have historically recorded in-person meetings to aid in accurate minutes and to best recall the details of important discussions.  Similarly, an electronic meeting recording can serve the same purpose – ensuring accuracy and transparency in meetings where there is a broad interest to owners but owners can’t attend in the traditional sense.  We are never against something that promotes but also clearly memorializes (hopefully) fair process.

The electronic condo meeting and recording should be for the benefit of the condo and its owners.  To ensure that, we’ve developed  best practices for electronic meeting recordings, which can translate to in-person meetings too.…

Continue Reading Electronic meeting recordings and best practices

When Amlani v. YCC 473 was released at the start of the year, it was the immediate frontrunner for “2020 Condo Case of the Year”. YCC 473 appealed and even in a year of fascinating cases, the Amlani decision still holds its seat at the top of that mountain.

The initial Amlani decision dealt with a common situation. In a nutshell, the board received complaints about Mr. Amlani’s smoking so they instructed their lawyers to deal with the matter. YCC 473 relied upon the indemnity provision in its declaration to charge back its legal expenses to Mr. Amlani and subsequently register a lien against Mr. Amlani’s unit to collect its legal fees.

The initial judge held that YCC 473 could not rely upon it’s the indemnity provision to charge back its legal costs for two key reasons:

1. Mr. Amlani did not commit “an act or omission to or with respect to the common elements and/or all other units” as required by the indemnity provision; and

2. YCC 473’s interpretation of its indemnity provision contravened section 134 (5) of the Condo Act as the costs it claimed related to compliance and enforcement costs without being embodied in a court order.

Section 134 (5) of the Condo Act allows a corporation to add its enforcement costs to an owner’s common expenses if a court awards the corporation its damages or costs in bringing a compliance application. Section 134(5) does not itself authorize a lien for legal fees incurred prior to the compliance application: to register a valid lien for legal fees, the court must first award these fees. However, many condominiums rely on their indemnity provisions as a “catch-all” provision to permit a corporation to add certain costs to an owner’s ledger resulting from their acts or omissions, often without requiring a court order.

The Amlani decision sparked considerable debate amongst condominium lawyers. Some of our esteemed peers argue that you cannot rely on an indemnity provision to charge back legal compliance and enforcement costs without first obtaining a court order. Others took the position that Amlani was a fact-specific decision that turned on the specific wording of YCC 473’s indemnity provision; they argued the Amlani decision does not stand for the proposition that a court order must be obtained before any pre-litigation legal compliance and enforcement costs can be charged back.

The Divisional Court recently set the record straight: condos cannot rely on their indemnity provisions to enable a lien to be registered against a unit to charge back compliance and enforcement costs without a court order. This does not mean a condo can’t recover its pre-litigation compliance and enforcement costs – condos can seek these costs in an s. 134 (5) order but registering a lien for these costs before the order is obtained is improper.…

Continue Reading Amlani and indemnity provisions – All Bark, no bite? Not quite

As we blogged on July 14, 2020 – The Ministry of Government and Consumer Services intends to proclaim a “Condominium Guide” into force effective December 1, 2020.  Submissions from the public on the proposed contents are due August 14, 2020. 

We made brief submissions on further potential headings for the Condo Guide table of contents.  These include status certificate and pre-construction condo purchase topics, first year deficiency and funding issues, conversion condominiums, and touch on the requirements for condo insurance, owner insurance and an explanation of standard unit vs. improvement coverage 

In our view, the suggested contents are comprehensive and hopefully the plain-language content will be too! 

In making our short notes, we had longer thoughts.  Here are some items we hope get fleshed out in the Condo Guide content: …

Continue Reading Considerations on the proposed “Condo Guide” 

When the City of Toronto first enacted its mandatory mask by-laws, condominiums were noticeably exempt. But after much feedback, the City of Toronto has amended its mandatory mask by-law to require masks in interior condo common elements such as hallways and elevators. By August 5, all Toronto condominium corporations must adopt a mandatory mask policy.…