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.

 

Turn-over Meetings: From Developer to Owners

stencil.default (35).jpgDevelopers have several obligations post-registration of a condominium, such as appointing a board of directors and the auditor, collecting fees, obtaining insurance, and registering the proposed by-laws. There are other tasks, such as arranging for a reserve fund study, performance audit, or repairs/maintenance, that might arise depending upon how long the developer controls the first board.

The developer must also call a meeting of owners on the later of the 30th day after 20% of the units have been transferred and the 90th day after the developer has first transferred title to a unit. At the meeting, the owners (other than the developer) may elect two new directors.  The meeting is not required if a majority of the units have been transferred and a meeting has been called to relinquish control to the owners (called the “turn-over meeting”). The turn-over meeting must be called within 21 days of the developer transferring a majority of the units and held within 21 days after it is called.  Continue reading

How to Calculate the First Year Budget Deficit

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Unfortunately, many budget statements are grossly inadequate, which leads to significant deficits in the first year and sharp increases in fees in subsequent years. The fees are kept unreasonably low and/or expenses are estimated at unrealistic amounts to make it seem like a better purchase than it really is. Luckily for condominiums and owners, there is a remedy available to them.  Continue reading

Question: I’m a director for a new condo. What do I need to know?

Being a director for a recently registered condominium is hard work, but it can be very rewarding. It reminds me of being the parent or caregiver for a newborn. At first, babies need constant attention and a high level of assistance to satisfy even their most basic needs. As they grow older they become more independent and are capable of satisfying their basic needs without much assistance from adults. A condominium is similar. Those first year or so after registration the directors will be very busy and face many challenges, but as the condominium ages it should get easier.

In addition to their ordinary duties (i.e. to manage the affairs of the condominium and ensure the owners comply with the Act and the condominium’s documents), the directors for a new condominium should pay special attention to the following:

  1. Performance Audit – The performance audit is an inspection performed by an engineer or architect to determine if there are any deficiencies that could give rise to a claim for payment from Tarion. The performance audit is mandatory for all residential condominiums, even if a claim to Tarion is not possible like in the case of conversion condominiums. The performance audit must be completed within the 6 to 10 months following registration and must be submitted to Tarion before the end of the 11th month following registration.
  2. Reserve Fund Study – A reserve fund study is a planning document that helps the board estimate current and future cash requirements for major repairs and replacements of the common elements and assets of the corporation. It must be completed within the first year of registration. The condominium may save some time and money by having the engineer performing the performance audit complete the reserve fund study around the same time.
  3. First Year Budget Deficit – Many budget statements prepared by declarants are grossly inadequate for the proper operation of the condominium. The fees are kept unreasonably low and/or expenses are estimated at unrealistic amounts. Luckily for condominiums and owners, the Act states that the declarant is accountable for the budget statement for one year following registration. This means the condominium can recover a first year deficit, if any, from the declarant. The condominium must notify the declarant of the deficit within 30 days of receiving the audited financial statements. The declarant is obligated to pay the deficit within 30 days of notice from the condominium. If a dispute arises about the deficit, the parties must mediate the dispute, and if necessary, use binding arbitration to resolve it.
  4. Agreements entered into by the Declarant – Some agreements entered into by the declarant on behalf of the condominium may be terminated by the new board:
    1. Management Agreements – with 60 days written notice.
    2. Agreements for goods, services, facilities, or leases of common elements for business purposes – with 60 days written notice if terminated within 12 months of the turnover meeting.
    3. Mutual Use / Shared Facilities Agreements – court may order that the agreement be terminated or amended within 12 months of the turnover meeting.
    4. Insurance Trust Agreements – with 60 days written notice.

This list is not exhaustive. The list above includes the most time-sensitive obligations that could cause significant problems for the condominium, directors and owners if they are not completed on time.