Upcoming Educational Opportunities

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With possible amendments coming as soon as July 1, 2020, there is no time like the present to attend one (or more) of the many great educational opportunities scheduled for the coming months. If you have the time attending a conference will likely get you more bang for your buck. If not, you can still learn about important condo issues by attending one of the shorter sessions. Here are some of the events that I’m looking forward to the most in the coming months: Continue reading

Reminder: Feedback on Future Amendments Due Soon

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As described in our post in February, the Ontario government is looking for feedback on its latest proposals for future amendments to the Condominium Act, 1998. Specifically, the government is looking for information on:

  • Changing the amount of interest that would be owed to a purchaser who makes deposits and other payments on a purchase into a pre-construction condo project, by the developer, if the condo project is cancelled and in other circumstances;
  • Requiring the CAO to develop a condo guide for buyers and require developers to provide it at the point of purchase;
  • Establishing guidelines or standards that will govern how condo corporations are to procure goods or services;
  • Clarifying how interim occupancy fees are handled by developers;
  • Establishing a process whereby condo corporations could add charges to an owner’s common expenses (condo fees), under certain circumstances;
  • Clarifying how contributions are made to reserve funds, the manner in which they can be used and how reserve fund studies can be conducted; and
  • Clarifying the processes for mediation or arbitration between corporations and owners.

These topics may not be important to you, but they should be. These topics could have significant financial implications for your condo (and you). You only have until March 10, 2020 to submit your comments. To have your say,  visit the Ontario website and provide your feedback online: https://www.ontariocanada.com/registry/view.do?postingId=31627&language=en

Security Cameras in Condos: Privacy Interests vs. Safety & Security

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We are routinely asked to provide advice to our clients about the installation of security cameras on the common elements. Sometimes the cameras are installed by the condominium on the common elements to reduce vandalism and property damage. Other times an owner wants to install a camera on the common elements adjacent to his unit to protect the occupants of the unit. For both situations the primary concern is normally the privacy rights of the other residents, but secondary concerns are often possible damage to the common elements caused by the installation of the camera and compliance with the legal requirements of the Condominium Act, 1998.

Continue reading

Caution: Reading this Post May Cause Nightmares About Indemnity Clauses

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A recent case involving the right of a condominium to charge legal fees to an owner for alleged non-compliance with a rule has the industry talking. The decision has divided the legal community, resulting in many interesting legal debates and a whole lot of uncertainty for condominiums going forward.

The case is Amlani v. York Condominium Corporation No. 473. The dispute was about smoking. Amlani smoked and the condominium received complaints about it. The condominium took some steps to improve the situation, such as sealing joints and penetrations between the units. The owner limited his smoking to one room and used air filters to reduce the smoke transmission to other units. Unfortunately, the condominium received further complaints. The owner was willing to meet and discuss potential solutions, but the condominium was unwilling to do so and demanded that he stop smoking in the unit as it was a nuisance. Continue reading

Condominium Amalgamation – A Few Considerations Regarding the Approval Process

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Recently our office has been working on condominium amalgamations as well as proposals for amalgamations for various clients in southwestern Ontario. We have previously blogged about the considerations for amalgamation [https://ontcondolaw.com/2017/09/21/is-it-time-to-amalgamate/#more-8070] and the process [https://ontcondolaw.com/2016/06/27/considering-amalgamation/#more-1947]. 

Here are a few lessons regarding the amalgamation approval process if the condominiums have already decided to pursue amalgamation and collected the necessary consents required by section 120 of the Condominium Act, 1998 (the “Act”). Continue reading

Kitec Claims: Deadline to Submit is Almost Here

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We previously highlighted the fast approaching Kitec claim deadline this past spring. Here is a final friendly reminder for condominiums in Ontario that the deadline to submit a claim form to be eligible to be included in the Kitec Settlement is 10 days awayJanuary 9, 2020.

You can find the claim form, information regarding the case/settlement, and FAQs here:  http://www.kitecsettlement.com/index.cfm

See our previous post https://ontcondolaw.com/2019/04/23/kitec-dont-forget-the-deadline-to-submit-a-claim/ for a few key reminders about completing the claim form and providing supporting documentation to file a claim.

Top Condo Lessons of 2019

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As 2020 approaches I find myself reflecting on the most important news, cases, and events from this past year. There were several notable decisions released this year and a few that I’m sure we would all like to forget! The hardest part of these lists is selecting only ten to speak about. Here is my list of the top ten condo lessons for 2019:

Counting Isn’t as Easy as 1, 2, 3

The Court confirmed the 10 day notice requirement for liens can be calculated by excluding the date the notice of lien is mailed and including the date of registration. Sending the notice of lien on January 21 and registering the lien on January 31 was acceptable. (Note: this is the minimum; more time is generally better). See CCC 476 v. Wong (2019). Continue reading

Is Phase Two of the Amendments on Its Way?

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Unless you are new to condo living, you likely know that the Condominium Act, 1998 was amended in 2017. At the time, many believed that the rest of the amendments would be phased in over the following 18 to 24 months. It has been two years and very few of the remaining amendments have come into force. [Note: if you review the Act you will see large portions of it in grey indicating that it has not yet come into force]. Continue reading

Grandparenting Not Required for Rule to Be Reasonable

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A recent application (Wellington Condominium Corporation No. 31 v. Silberberg) before the Superior Court considered whether a condominium corporation’s newly enacted rule prohibiting smoking within the common elements of the condominium plan was unreasonable.

The Facts

The facts of the dispute are not complicated:

  • The owner of a unit (the “Owner”) had been smoking on the balcony adjacent to the Owner’s unit (the “Balcony”) since first occupying the unit in 2009;
  • There was no rule prohibiting such activity until, in response to complaints of smoke migration, the condominium corporation proposed a new rule that prohibited smoking within the common elements (including the exclusive use balconies) of the condominium plan;
  • The proposed rule did not prohibit smoking in the units of the condominium plan;
  • The condominium corporation held a meeting of owners after receiving an invalid request for same;
  • Some owners requested the Rule be amended so it would not be enforced against those occupants that smoked in the common elements prior to the rule coming into effect;
  • A majority of eligible owners voted not to amend the rule as proposed by the condominium corporation;
  • The rule came into effect June 21st, 2018 and read as follows:

Smoking of any kind, including without limitation by using vaporizers or e-cigarettes is not permitted in any part of the common elements or exclusive use balconies at any time.

(the “Rule”);

  • The Owner admittedly continued to smoke on the Balcony after June 21st, 2018 and believed the condominium corporation could not stop him from doing so;
  • The condominium corporation contacted the Owner demanding compliance with the Rule;
  • Counsel for the condominium corporation sent multiple letters to the Owner/Owner’s counsel demanding compliance with the Rule; and
  • The Owner continued to smoke on the Balcony.

 

The Application

The Court was asked to consider 3 issues:

  1. Is the Balcony unit or exclusive use common elements?
  2. Was the Rule properly passed?
  3. Is the Rule reasonable?

Is the Balcony unit or exclusive use common elements?

The Court was satisfied that the Balcony was an exclusive use common elements area of the condominium plan.

The Owner alleged the Balcony or a portion of the Balcony was owned exclusively by the Owner.  Other than the viva voce evidence of the Owner during cross examination, photos of the Balcony, and the Owner’s sketch of the Balcony depicting its dimensions, the Owner offered no evidence to support this assertion.

The Court preferred the wording found in the condominium corporation’s declaration that provides:

the Owner of each Unit shall have the exclusive use of that portion or portions of the Exclusive Use Common Elements as set out in Schedule “F” attached hereto.

Schedule F to the condominium corporation’s declaration provides:

The Owner of each Unit shall have the exclusive use of any balcony to which the Unit shall provide direct and sole access as shown on Parts 1, Sheets 2 and 3.

The Court found that “[a]bsent some modifying words in the [declaration] itself, balcony should be taken to mean the whole balcony”.  The Court went on to find that this interpretation was supported by the design of the Balcony and found no evidence to otherwise support the assertion that the Owner has exclusive ownership of part of the Balcony.

Was the Rule properly passed?

The Court found the Rule was properly passed.

As the Owners attended the meeting of owners by proxy, the Court was satisfied subsection 47(9) of the Condominium Act, 1998 prevented the Owner from objecting to a failure of the condominium corporation to give the required notice.  With respect to the meeting itself, the Court was satisfied that the uncontradicted minutes of the meeting of owners included in the condominium corporation’s application materials disclosed that a quorum of owners was present at the meeting of owners and that the Rule passed without amendment.

Is the Rule reasonable?

After recognizing the Court should only interfere with a rule properly enacted by a condominium corporation where such rule is clearly unreasonable, the Court was satisfied the condominium corporation had a reasonable basis for enacting the Rule.  The Court found that:

  1. given the current legislative environment, it was not unreasonable for the condominium corporation to impose further restrictions on smoking within the condominium plan;
  2. it was not unreasonable for the condominium corporation to regulate smoking in areas where fumes could affect other units;
  3. given the broader public context, the Rule was reasonable in and of itself;
  4. owners had an opportunity to discuss the proposed rule at a meeting of owners; and
  5. there had been complaints about smoke migration.

The Court then went on to consider whether the Rule was unreasonable for want of “grandparenting” occupants that smoked within the common elements prior to the Rule coming into effect.  The Court concluded that a period of grandparenting for the Rule was not necessary as such was not required by the Condominium Act, 1998.

The Court went on to note that the Owner was permitted to smoke within the Owner’s unit and that the Rule did not prohibit the Owner from smoking within the entire condominium plan.  Further, the Court as in Thunder Bay Condominium Corporation No. 15 v Ewen, found the Owner could walk off the condominium plan and smoke there.  The Court went on to state that including a grandparenting provision in the Rule would defeat the purpose of the Rule – to prevent smoke migration – and that the Rule does not contain any grandparenting provisions is neither unexpected nor unreasonable.

The Court concluded that the Rule was entirely reasonable and did not leave the Owners without options.

Takeaway

This decision illustrates that reasonableness is highly context dependent.  The decision clearly demonstrates that the Court will consider the broader legislative and public context in making a determination as to whether a rule is reasonable.

Although the Court concluded that a grandparenting provision was not required in this instance, it is essential to note that the circumstances surrounding the Rule appear to have had significant value to the Court in reaching its decision.  Further, the Court concluded that grandparenting in this context would defeat the purpose of the Rule.

It remains possible that a grandparenting provision could be required where:

  1. such a provision would not defeat the purpose of the rule; or
  2. the rule prohibits an activity in its entirety.

Further still, condominium corporations may wish to consider including a grandparenting provision for political purposes – to ensure a majority of eligible owners will vote in support of the proposed rule should the condominium corporation receive a requisition for a meeting of owners to vote on the rule.