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

While mediation and arbitration have been mandatory for most types of condo disputes for over 12 years, it seems that there are still plenty of condo cases finding their way into the courts.  According to the scuttlebutt, the judges are starting to notice this, and they apparently aren’t too happy with the volume of people, pets and parking cases clogging up their dockets.

Though I was at first skeptical that the number of condo cases is increasing to epic proportions, tallying up the reported decisions released since our last batch on August 27 is telling.  While the cases we’ve tweeted in the past three months include cases from tribunals and courts of other provinces, the Ontario court cases shown below are probably just the tip of the iceberg when you consider that most court decisions are not sufficiently substantive or interesting to be reported.  In other words, there are probably a lot more condo cases out there that we haven’t heard about.   No statistics are kept and there’s no simple way of keeping track of them, but it’s probably safe to say that there are a lot and that their number is growing.

Here’s the latest bunch, and a big one at that!   As always, follow me on Twitter to stay ahead of the curve with live feed.

Continue Reading Court and tribunal round-up to December 4, 2013

Today is the 150th anniversary of the Gettysberg Address, one of the most famous speeches in history.  It was given by Abraham Lincoln, one of the most extraordinary people to ever walk the earth.

Before becoming President of the United States, Lincoln was a lawyer.   From his notes, we see that his thoughts on law practice were simple but profound, much like his views on political matters like the abolition of slavery.   Here is a good example:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

— The Collected Works of Abraham Lincoln, edited by Roy P. Basler, vol. 2., “Notes for a Law Lecture” (July 1, 1850).

This passage is striking not only for its timeless quality and crystalline clarity, but that it raises the often-forgotten truth that lawyers are not simply their clients’ mouthpiece. By their training and experience, lawyers are uniquely positioned to recognize and impress upon others the futility of conflict.  According to Lincoln, lawyers have an obligation to use those skills (as a peacemaker) to benefit their neighbours and, of course, their clients.

Now, more than ever, lawyers need to think more like Lincoln.  

 

This month, we celebrate our fifth anniversary of launching this blog.

Since 2008, we have witnessed and written about the good, the bad and the ugly in Ontario condominiums, including:

  • continued explosive growth in new condo construction;
  • new usages of the condominium concept (hotels, resorts, parking facilities);
  • exponential growth of investor ownership and foreign investor ownership;
  • dwindling engagement and participation by unit owners in their condo’s affairs;
  • unit owners and occupants becoming increasingly sophisticated but (for some) unduly self-entitled;
  • greater numbers of condo occupants suffering serious mental health issues;
  • courts and tribunals grappling with the influx of people, pets and parking cases;
  • rising backlash against directors who abuse their powers and position;
  • more frauds against condo corporations, including one of epic proportion;
  • growing complexity of the legal and regulatory landscape facing owners, directors and managers;
  • success stories of condos stepping back from the brink and tales of others that plunge right off;
  • increasing condo manager professionalism and the prospect of licensing and self-regulation;
  • condo mediation achieving critical mass and acceptance at long last;
  • governments reviewing and revising their condo laws

…to name just a few.

Continue Reading At 5 years: Our changing skyline

In late September, stage 2 of Ontario’s Condominium Act Review came to a close with the issuance of a Solutions Report.

This report is the product of condo residents, stakeholders and experts closely considering the various concepts and problems identified in stage 1 of the review process and devising specific and often creative solutions to address them. Working groups were struck to cover each of the five main topics identified early in the review process (being consumer protection, governance, financial management, dispute resolution and condo manager qualifications) and they worked over the summer to formulate solutions that were then vetted by an expert panel.

Of the more than 100 recommendations presented in the Solutions Report, most are much-needed clarification or tweaking of the current statute, but some are much more profound, including:

Continue Reading Have your say on Condo Act Solutions Report

Here is our quarterly newsletter for Autumn 2013, which includes our provocative piece on licensed marijuana grow-ops in condominiums and news of an addition to the partnership here at Gardiner Miller Arnold.

Our next edition will be rolled out at the annual CCI/ACMO Condominium Conference in November.  Be there or be square, and stay tuned to this space for an electronic copy of the newsletter following the conference.

The first call that condo boards and managers usually make after discovering a marijuana grow op in their complex is to police.   But when that grow op holds one of 21,500 federal licenses to produce medicinal marijuana, there is little or nothing that police can do, as residents of a Brampton neighbourhood recently discovered.

Though police may lack the power to shut down a licensed grow op, condo corporations have a number of tools to deal effectively with grow ops inside units that cause damage to the common elements or neighbouring units or create a nuisance to nearby occupants.

Continue Reading Condos tougher than feds on licensed grow ops

I’ve taken some time away from the office this month but return to the saddle today. Many thanks to the condo boards and managers who let me slip away and have patiently awaited my return.

As we approach the last long weekend of summer, here’s a batch of court and tribunal cases we’ve tweeted since April 1st.  The volume of decisions seems a little lower than usual, perhaps on account of summer holidays.

Be sure to take advantage of these sunny and warm last days of August and stay tuned to me on Twitter for live feed on condo law and other neat developments.

ONCA: Notice of expired condo lien does not cover subsequent defaults, but registration does. http://ow.ly/jMhGA 

ONSC: Condo unit owners selling beer in breach of restraining order held in contempt, fined & ordered to vacate/sell. http://ow.ly/k2ajh 

ONSC: Revised disclosure reveals no “material” changes; purchasers cannot rescind purchase of Trump condo units. http://ow.ly/kBIo2 

ONSC: Condo’s bid to invalidate fixed price energy contract dismissed for missing limitation period. http://canlii.ca/t/fxbd9 

ONSC: For breaching court order, condo directors to pay $97K costs and might still be liable to reimburse the condo! http://ow.ly/kUnyC 

ABCA: Accountant’s nasty emails over condo repair scenario amount to professional misconduct. http://canlii.ca/t/fx55w 

HRTO: No discrimination over condo parking arrangement where unit owner didn’t ask for upfront spot when purchasing. http://canlii.ca/t/fx9tg 

HRTO drops personal respondents (condo directors, manager) from complaint when unit owner provides no particulars. http://canlii.ca/t/fxlfc 

ONSC ties up loose ends of settled $20M condo fraud lawsuit. Channel employee’s $51K claim for costs slashed to $5K. http://canlii.ca/t/fxrwm 

ABQB: Insurer must defend developer under CGL policy in negligent design and construction claim made by condo corp. http://canlii.ca/t/fz31r 

ONSC: Chair’s ruling on proxies at condo meeting upheld; disputed proxies wouldn’t change outcome of vote anyhow. http://ow.ly/mnUCr 

HRTO: Condo unit owner’s complaint of generally shabby treatment by board has no prospect of success, is dismissed. http://ow.ly/mr3po 

ONSC: For not offering a disabled parking space, developer-controlled condo corp liable under OHRC, AODA, Condo Act. http://canlii.ca/t/fzm2p 

BCCA: Strata’s lawsuit vs. developer re shared facilities costs invalid for not obtaining 3/4 owner approval. http://canlii.ca/t/fzttj

ONSC: Condo special assessment to scoop new unit owners’ windfall allowed; no status certificate disclosure issues. http://canlii.ca/t/g053b [corrected link]

When it comes to condo law reform, there is very little that everyone agrees on.   So when the Minister of Consumer Services announced on July 19, 2013 that introducing condo manager qualifications was the one concept that found unanimous support in the government’s Condo Act Review process, the news was big.

And long overdue.

Continue Reading At last, condo manager regulation takes root in Ontario