Who can apply for a minor variance for the common elements? Condo or owner?

stencil.default (34)Recently there was an interesting decision released involving a parking dispute between a condominium and a unit owner. This isn’t surprising given that parking is a common problem in condominiums. The interesting part is that the decision was made by the Ontario Municipal Board (OMB) and answered the question: can an owner make an application for a minor variance from a zoning by-law for common element parking spaces? (Spoiler alert – the answer is likely no).  Continue reading

Summer Case Law Reading

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Who doesn’t enjoy a little case law reading by the pool or beach? Oh, that’s just me? Oh well. I hope you enjoy reading these brief summaries anyway.

MTCC No. 1067 v. 1388020 Ontario Corp. 

This is an action by a condo to enforce a lien. The condo brought a motion for summary judgment. There were three issues: interest on the arrears of monthly fees; additional expenses claimed by the condo; and legal costs.

The condo claimed interest at a whopping 30% above the prime rate charged by TD to its best risk commercial accounts per annum, compounded monthly. The defendant argued that the condo was not entitled to such a high rate of interest because it could not provide precise, consistent statements to show it was entitled to the full amount. The judge disagreed. The by-law was a contractual arrangement between the owner and the condo and there was no reason not to enforce it.  Continue reading

Owner not oppressed by by-law restricting use of parking spaces

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I recently read an interesting case about parking rights in a commercial condominium. The applicant was the owner of three units, which were leased for use as a restaurant. The owner commenced an application against her condominium after it passed a by-law restricting parking in common element spaces.

Historically parking was allocated on a first-come, first-served basis. This led to problems with insufficient parking for customers and employees of many of the units. In 2009 the Board passed a by-law to change the allocation of parking spaces. The by-law allocated two parking spots to each unit. In 2014 the Board discovered that the by-law was never registered so it was not valid. The Board passed another by-law in 2015 to fix the problem. The 2015 by-law increased the number of parking spaces per unit to four. The result was that the restaurant had significantly less available parking for its customers.

Continue reading

Parking Dispute Draws Criticism from Judge

Yet another case has been released where the judge hearing the case has been very critical of the parties, especially their failure to consider mediation or act reasonably. In Couture v. Toronto Standard Condominium Corporation No 2187 (2015) a dispute arose about a parking space.

Here are the brief facts: the condominium has 44 units, but only 32 parking spaces. The declaration indicated that parking would be assigned at the “sole discretion of the Corporation.” It also required vehicles to be licensed, insured, and in good repair. The owner was fortunate enough to have been assigned a parking space when she initially purchased her unit. In 2012, the condominium revoked her rights to use the parking space as it claimed that she was not complying with the declaration because the vehicle was not in good repair or licensed. She removed the vehicle and claimed that as long as she paid the rental fee of $50.00 per month she was entitled to keep the space whether there was a vehicle using it or not. Continue reading

What’s the Deal with Parking Spaces and Units?

I have noticed that many people use the terms “parking space” and “parking unit” interchangeably. Unfortunately, this can cause confusion as there are significant differences between parking units and parking spaces.

A parking unit is like other units in a condominium: it is identified in Schedules “C” and “D” of the declaration and in the description as a unit, and is not part of the common elements. The unit has its own legal title, which can be searched at the Land Registry Office or electronically. The unit may be leased or transferred by the owner, unless the condominium’s documents prohibit such.

On the other hand, parking spaces are not units. There is no separate legal title to the parking space and the owner that uses the space cannot transfer it. The parking spaces may be exclusive-use common elements or part of the ordinary common elements. Exclusive-use parking spaces are identified in Schedule “F” of the declaration and on the description. Some parking spaces are simply part of the common elements and the board assigns them to the owners and occupants, sometimes in a by-law.

While it may seem trivial, the distinction between parking units and parking spaces is important because of the different legal rights and obligations associated with each situation.