Elevators Let You Down?

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A recent case offers some insight into the standard expected of condominiums and others when it comes to injuries related to malfunctioning elevators in condos.

The Facts

The claim was brought by a unit owner and her mother against the condominium, manager, security/concierge, and elevator servicing company.  The plaintiffs alleged that the mother was visiting her daughter when she fell while exiting one of the elevators due to mislevelling of the elevator. The mother apparently sustained a broken left wrist and dislocation of her right shoulder. She sought damages of $2 million. The daughter claimed $200,000 for loss of care, companionship and guidance due to her mother’s fall.

The defendants all brought summary judgment motions asserting that there was no genuine issues for trial. Continue reading

The Battle Rages On…

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A few years ago I wrote about a case that had dragged on for over six years.  It involved a former director and a condominium. The director took various steps without legal authorization from the board, including terminating the manager and commencing a legal action against the property management company and its president. The director also commenced an action against the condominium and accepted service of his own claim so the other directors were not aware of the claim. This was all within 4 months of being elected by the owners. Not surprisingly, the owners requisitioned a meeting to remove him. That didn’t stop him. He started 5 legal actions in 2010, all of which were dismissed with costs. He appealed, which was also dismissed. Continue reading

Entering a Unit for Enforcement Purposes

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One of the most popular posts of all time on our blog is “Making Entry to a Unit” from 2014.  It described the requirements set out in section 19 of the Act:

Right of entry

19 On giving reasonable notice, the corporation or a person authorized by the corporation may enter a unit or a part of the common elements of which an owner has exclusive use at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation. 1998, c. 19, s. 19.

One of the areas lawyers argued about was whether the condominium could use section 19 of the Act to make entry to inspect a unit for enforcement purposes (i.e. to confirm the presence of a dog, too many occupants, noise). My view was always that section 19 says the condominium can make entry to a unit to perform its objects and duties and exercise its powers. Since section 17(3) of the Act states that the condominium has a duty to ensure the owners (and others) comply with the Act, declaration, by-laws and rules, the condominium should be able to use s.19 to make entry to a unit to inspect for compliance with the Act, declaration, by-laws or rules. Continue reading

The CAT’s Meow – New Tribunal Decisions

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The CAT has been busy this month releasing three new decisions. Obviously, the issues relate to record requests. All three cases have some interesting commentary on the circumstances when the CAT will award legal costs and penalties.

Lahrkamp v. Metropolitan Toronto Condominium Corporation No.
932, 2019 ONCAT 4

The owner filed a claim with the CAT for records. Previously, the condominium obtained an order from the Superior Court of Justice to declare the owner a vexatious litigant. The CAT member found the owner’s claim vexatious and dismissed it. That was not the end of it. The condominium sought over $12,000 for costs of its involvement in the CAT hearing and $22,000 after further submissions were made! Continue reading

CCI GHC Conference – Register Now!

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The next CCI-GHC conference, The Future is Now! Let’s Face it Together, is quickly approaching on May 3rd and 4th, 2019 in Stoney Creek. There will be educational sessions on a variety of topics and a trade show with the exhibitors. The Friday event is for property managers only. It will feature speakers from the CAO and CMRAO. A social event will follow with prizes for the managers in attendance. The Saturday event is open to all attendees and will feature a keynote session, 10 educational sessions (including the always popular Rapid Fire Legal), and a trade show.

CCI-GHC has prepared a useful flyer explaining the benefits of attending the conference. You can download it here: http://cci-ghc.ca/broadcast/pdf/GHC-Conf-Why-You-Should-Attend.pdf  Register now to avoid disappointment!

For the business members, there are a few booths and sponsorship spots left for purchase. You can purchase them online at the GHC website: https://cci-ghc.ca/sponsor-exhibitor-registration

Employee Entitlements

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About this time last year I wrote about Bill 148 (Fair Workplaces, Better Jobs Act, 2017) which included huge changes to employment law in Ontario. You can see the post here. Some of the amendments, like the increase to minimum wage and equal pay for equal work on the basis of employment status (i.e. part-time vs full-time), came into force last year. Many of the amendments, such as a further increase in minimum wage and the scheduling requirements, were set to come into force on January 1, 2019. But wait! There have been more significant changes to the employment landscape.  Continue reading

Trouble with the declarant?

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I am regularly consulted by our condominium clients about issues with the declarant. Sometimes the declarant is in arrears of common expenses for units it still owns. Other times the declarant has not paid the first year budget deficit owing to the condominium. Sometimes the declarant made promises to purchasers that they didn’t follow through on. On occasion there are construction defects. What’s a condominium to do? Unfortunately, the answer depends on the situation and there is no one best way to deal with the declarant.

Arrears of common expenses

The easiest problem on the list – arrears of common expenses – is also one of the most common. Where the declarant has fails (or refuses) to contribute toward the common expenses payable for any units that it still owns the condominium may be able to register a lien against the unit to collect the amounts owing just like it would with any other unit owner. The declarant usually intends to sell the units quickly after registration so it is important to pursue liens against declarants in a timely manner. If not, the declarant could transfer the unit and a dispute could arise about their responsibility for arrears owing prior to the transfer.

It is important to note that the condominium can only register the lien against the units in arrears and not all of the units owned by the declarant. It is also important to review the declaration to see if the declarant is obligated to pay for the units while it still owns them as on occasion there is an exemption for the declarant while it owns units (see this case).

First year budget deficit

Another common issue is collecting the first year budget deficit owing from the declarant to the condominium. We previously posted about the declarant’s obligation to reimburse the condominium for the first year budget deficit (see here).

The Condominium Act, 1998, states that the declarant is accountable for the budget statement for one year following registration of the declaration and description (or the registration creating any phases). Section 75 of the Act states that the developer is responsible for the difference between the budget statement and the actual numbers, which are described in the audited financial statements. The condominium must notify the declarant of the deficit within 30 days of receiving the audited financial statements. The declarant then has 30 days to pay the condominium.

If the declarant refuses to pay the condominium, or they have a dispute about the deficit, the condominium and declarant must mediate the dispute pursuant to subsection 132(3) of the Act:

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If the condominium and declarant cannot reach a settlement at mediation the next step is binding arbitration, which is very costly.  Fortunately, in my experience, most declarants pay before arbitration is required.

Like with arrears of common expenses, it is very important that the condominium act quickly when faced with a first year budget deficit issue. The Act has very tight timelines (i.e. 30 days after receiving the audited financial statements) that must be complied with or the declarant may be able to avoid the obligation. Also, as the units are sold the declarant may transfer assets, which may leave very little funds left to satisfy the first year budget deficit.

Inadequate Disclosure or Misrepresentation

Some owners feel like the declarant misrepresented some aspect of the development to them. For instance, I have two different sets of condominiums who feel aggrieved because their declarants marketed the condominiums as phased condominiums only to register them as separate condominiums. This may not seem like a big deal, but the costs are significantly higher to operate the condominiums as two separate entities than it would have been as one. In one case, the condominiums are considering legal action to recover their damages. In the other the declarant agreed to contribute toward the costs of amalgamation.

If the purchaser becomes aware of the issue prior to closing on the unit, such as after receiving a material change notice from the declarant, they may be able to rescind the agreement and walk away. Unfortunately, once the units are transferred from the declarant to the purchasers the process is more complicated as rescission of the agreement is no longer an option and the owners must sue for damages. For this reason, it is vital to have the disclosure documents (and any notices about changes to the disclosure documents) promptly reviewed by a lawyer. The lawyer needs time to review the documents and prepare a notice to the declarant within ten days of receiving the documents if rescission is sought by the purchaser. Time is of the essence!

Construction defects

Some unfortunate condominiums find construction defects in the common elements or units. The engineer often finds them during the performance audit or subsequent reserve fund studies, but sometimes they can be discovered years later when destructive testing is completed for an upcoming repair project. Depending on a number of factors (i.e. the time of the discovery, type of condominium, and the type of defect), the condominium could have a warranty claim to Tarion. If not, the condominium may still have a cause of action that could be pursued at court, such as breach of contract, breach of warranty, breach of statutory duty, or negligence.

If a condominium suspects there are construction defects it needs to hire an engineer to investigate as soon as possible. It should also have a preliminary discussion with a lawyer to determine any possible limitations to a claim against the declarant. Apart from traditional limitations, such as the statue of limitations or expiration of warranty periods, some declarants are not including documents in their disclosure packages that require the condominium to release legal rights to pursue the declarant for construction defects, except for those that cannot be released (i.e. major structural defect warranty claims to Tarion).  My recommendation would be to consult with engineers and lawyers familiar with construction defect litigation. The condominium’s general counsel may not have the knowledge and expertise that you need when it comes to construction defects.

 

Tips for Owners Requisitioning Meetings

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Requisition meetings can be a source of anxiety for many directors, managers, and owners. In my experience, the conduct of the parties during the preliminary steps of the requisition process can exacerbate the anxiety and cause a great deal tension, hostility, and bickering at the meeting. We previously wrote about the requirements for requisition meetings (here) and the practical tips (here) for condominiums in responding to requisition requests. Today, I thought that I would share some tips for owners requisitioning meetings. Continue reading

Let the CAT out of the Bag

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The Condominium Authority Tribunal (CAT) has been up and running for a little over a year now. It has released 14 decisions so far, but it has handled hundreds of claims based on the last statistics disclosed at the ACMO/CCI-T Conference in November. Despite being a popular topic at condominium industry events, I am regularly asked about the CAT’s jurisdiction to hear disputes. Continue reading

Condo Stats – Golden Horseshoe

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Today, I am going to update a previous post we did on condo stats for the Golden Horseshoe area as I did earlier this week for Grand River. For those unfamiliar with the area, the Golden Horseshoe includes Halton, Hamilton-Wentworth, Niagara, Haldimand, and Norfolk.  In the next few weeks I’ll provide statistics for the other areas of Ontario.

As of June 27, 2017, the Golden Horseshoe had 1665 registered condominium corporations:

  • Halton – 672
  • Hamilton-Wentworth – 552
  • Niagara – 391
  • Haldimand – 17
  • Norfolk – 33

As of January 22, 2019,  the Golden Horseshoe now has 1722 condominium corporations registered:

  • Halton – 695
  • Hamilton-Wentworth – 570
  • Niagara – 401
  • Haldimand – 19
  • Norfolk – 37

As said in my previous post,  the total number is not the number of active condominiums. Some condominiums have been terminated or amalgamated so the “real” numbers are less than those above. Hopefully the CAO will start releasing statistics to the public on the real numbers.

That’s it for now.  Share this post and let me know what area you want statistics for next!