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.
A couple of weeks ago, the Superior Court of Justice released an important decision, HCC 77 v. Mitrovic, regarding mandatory masks in condos. The court ordered two owners to wear a mask or face covering while on interior common elements but also granted an exception permitting them to travel on any interior common elements…
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.
The Condo Authority Tribunal’s decision in Rahman v. PSCC 779 is the first of its kind under the Tribunal’s expanded jurisdiction. The case provides a strong warning against condos seeking to unilaterally impose costs against unit owners.
The Tribunal held that it had authority to hear this matter – a dispute concerning parking and indemnification…
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.
Unit owners occasionally request records about past and current litigation. This can happen in the context of a condo’s AGM, a debate with management or a seemingly benign records request. When is it okay to provide such records?
The CAT recently clarified that when litigation is settled or fully concluded and the record is not solicitor-client/settlement privileged, a record may be examined and produced: the fact that the record relates to litigation is not a reason to refuse access.
The CAT’s decision in Abou El Naaj v. Peel Standard Condominium Corporation No. 935 reflects a problematic trend of condos failing or refusing to participate in Tribunal proceedings. We do not recommend ignoring a CAT application… Just like real live cats, they don’t go away by simply ignoring them.
We understand why condos might not…
The Condominium Authority Tribunal recently granted an order under Rule 4.5 of its Rules of Practice for the first time since its inception. Rule 4.5 states:
If the CAT finds that a Party has filed a vexatious Application or has participated in a CAT Case in a vexatious manner, the CAT can find that Party…
Approximately two months have passed since the CAT’s jurisdiction expanded beyond condo record requests to include disputes regarding, pets, parking, vehicles and storage and chargebacks related to such issues. However, the CAT has yet to release a decision dealing with these new topics. It may take some time for cases involving expanded jurisdiction issues to wind through the CAT’s online dispute resolution system. In the meanwhile, enjoy Part 2 of our deep dive into record disputes (Part 1, here).
Continue Reading Key take-aways from the CAT’s record request decisions – Part 2
There are limited circumstances where directors of condominium corporations can be personally liable for oppressive conduct under Condominium Act, 1998.
In a recent Ontario Superior Court of Justice decision, the declarant (also a unit owner at a vacant land condominium corporation) sued the condominium corporation and the individual directors. The allegations of oppressive conduct by the condo and directors included exaggerating construction deficiencies and not repairing them at the same time, implementing rules that impeded the declarant’s ability to rent units and adding these issues to status certificates (among other allegations). The condo corporation brought a motion to throw out the claim against the individual directors under the rules of the court.
The court threw out the claim against the individual directors because:
- the declarant did not provide sufficient particulars as to what each individual director is alleged to have done, as differentiated from the condo corporation’s alleged conduct; and
- the alleged conduct of the individual directors did not result in any personal benefit or increase their control in any way; and
- there was no reasonable basis in the claim for the court to decide whether the alleged oppression could be rectified by a monetary order against the directors personally.