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!

Condo Stats – Grand River Edition

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For any of the self-proclaimed condo geeks out there (I’m thinking of you Jon Juffs), I thought that I would update a post we did previously on condo statistics. As a director for the Grand River chapter of CCI and a resident of the area, it seemed most fitting to start with the Grand River. For those unfamiliar with the area, the Grand River includes Brant, Wellington and Waterloo.  In the next few weeks I’ll provide statistics for the other areas of Ontario.

As of June 27, 2017, the Grand River had 971 condominium corporations registered:

  • Brant – 105
  • Wellington – 237
  • Waterloo Region – 629

As of January 22, 2019,  the Grand River has 1007 condominium corporations registered:

  • Brant – 110
  • Wellington – 249
  • Waterloo 648

It should be noted that the total number is not the number of active condominiums as a few condominiums have been terminated or amalgamated. For instance, I attended a meeting for a Waterloo condominium last night that was created in 2004 when 20 condominiums (ranging in size from 3 units to 16 units) amalgamated into a single condominium. On my wish list is an accurate list of active condominiums for each jurisdiction. Maybe someone at the CAO could help us out?

Apart from the number of condominiums, the trends as far as type, number of units, and style appears to be holding steady. For instance, the last condominium registered in Wellington was a 36 unit townhouse style in Guelph. In my experience, many of the condominiums in Wellington are townhouses; high-rise and single detached condominiums are less common. The last one in Waterloo was a 77 unit low-rise in Waterloo. In Brant, it was a 9 unit vacant land condominium. As a percentage of the total number of condominiums, I suspect that Brant (or possibly  Middlesex) may have the most vacant land condominiums.

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

 

Upcoming Events: Winter 2019

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The post-holiday / winter blahs usually peak around now. Why not get out and socialize with some like-minded people? Meet some new people. Share a few laughs. And learn some tips from the experts. There are plenty of great events coming up this winter. Here are the highlights:

January 2019

23rd – CCI-Eastern Ontario’s Lawyers, Guns and Money in Ottawa. If the title of this event isn’t enough to entice you, I don’t know what is! The presenters will review some of past year’s most important court decisions.

24th – CCI-Huronia’s Introduction to Condos Course in Barrie will provide basic (but important) information to directors and owners.

26th – CCI-GHC’s Beyond Mediation – Condominium Conflict Management in Burlington. I will be speaking with two of the leading condo mediators – Colm Brannigan and Marc Bhalla. This is a level 300 so space is limited. Sign up now to avoid disappointment.

29th – CCI-London’s Lunch & Learn on the Mysteries of the Condominium Authority Tribunal (CAT). Do you have questions about the CAT? This is the session for you!

February 2019

8th – CCI-GRC’s Professional Partners Lunch & Learn on Preventative Maintenance in Kitchener. This annual event includes over an hour of presentations as well as plenty of time for networking with the trades and professionals in attendance.

12th – CCI-London’s Seminar on Budgets. This course is designed to help condos prepare budgets and will include a discussion of related issues, like reserve fund contributions.

13th – CCI-GHC’s Introduction to Condominiums in Stoney Creek. This session will provide a basic overview of condominiums, property management, director responsibilities and financial issues.

March 2019

1st – CCI-GHC’s Lunch & Learn series. No details are available so you’ll have to check back for further information.

12th – CCI-London’s Climate Change: It’s Impact on Condominiums seminar. Details are not yet available, but this sounds like it could be an interesting session so stay tuned for more information!

Coming Soon – Better City Waste Collection Options for Condos in Guelph

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Last week I attended a meeting with staff from the City of Guelph’s Environmental Services department to hear about the City’s latest efforts to provide better waste collection services to multi-residential properties, including condominiums.  The City’s 2014 Solid Waste Management Master Plan Update included a recommendation that City waste collection be expanded to multi-residential properties. One of the key pieces of this recommendation – a front-end large bin collection vehicle – is set to be rolled out in the second quarter of 2019. This has taken longer than initially hoped, but better late than never, right? Continue reading

End of Year Recap: Top Posts of 2018

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It is that time of year again: time to reflect on the most popular posts of 2018. Just like last year, I expected that this year’s hot topics (cannabis, electric vehicles, and the amendments to the Act) would dominate the list, but that was not the case with one exception (you’ll need to keep reading to find out what it is). Interestingly, one of the top five posts was also on the list in 2017 and 2016. Can you guess the topic? Continue reading

Common Errors with the Amendments: Part 3

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We posted previously about some common errors and misconceptions that we have run into since the Act was amended last year. We are still encountering issues regularly. Given the complexity of the regulations is it any wonder we are still encountering mistakes and misconceptions? Here are some of the most common issues we have encountered so far:
Myth: If a candidate makes a disclosure prior to her election or appointment she is automatically disqualified. For instance, if a candidates checks off the box that says “I am not an owner” the candidate cannot be on the board.

Continue reading