Condos in Trouble

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We’ve all heard the horror stories of condominiums with no money in their reserve accounts and significant repair projects that need to be completed. Work orders may have been issued by the municipality because the buildings are falling apart and becoming a danger to the occupants. At best, there are allegations of mismanagement by previous boards. At worst, there are allegations of fraud and theft. Many of the owners have defaulted in their contributions toward the common expenses and the condominium is unable to pay its contractors, which results in lawsuits due to unpaid bills. The local real estate agents know of the issues and the market values of the units plummet.

When the board attempts to fix some of these problems, such as levying special assessments, they often receive a requisition to remove them. The new board quickly changes managers, rescinds the special assessment, and lowers monthly fees. A requisition is received to remove the new board shortly after they are elected. Factions form and every issue creates further division among the owners. The problems are ignored or pushed aside while the groups fight for control.

So, what can be done in these terrible situations? The Act contains a few options to help condominiums get out of trouble. Continue reading

The Controversiality of the Voting Threshold: Borrowing By-laws

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Earlier this week, we blogged about the considerations and processes involved when a condominium determines there is a need for borrowing from a lender, inclusive of the requirement for a borrowing by-law. In this post, we discuss a recent case related to the passage of borrowing by-laws, which has created some controversy within the condominium industry.

LaFramboise v. York Condominium Corp. No. 365, 2019 CarswellOnt 680, dealt with a motion brought by an appointed administrator on behalf of a condominium corporation, seeking direction from the court as to whether a borrowing by-law had been passed at an owners’ meeting. Although there was little information provided on the particular circumstances that led to this application, it appears that some unit owners may have questioned the validity of a borrowing by-law that was passed at an owners’ meeting, resulting in the motion for direction to be filed by the condominium corporation’s administrator.

Based upon an interpretation of sections 50 and 53 of the Condominium Act, 1998 (“Act”), the Court appears to suggest that so long as a majority of all unit owners within a condominium are present at an owners’ meeting called to consider a borrowing by-law, a borrowing by-law can be successfully passed with the support of a majority of all unit owners present at the meeting rather than a majority of all units within the corporation.

Respectfully, the conclusions drawn from the interpretation of the Act in this case are contrary to the Act; specifically, section 56(10) of the Act.

56(10) of the Act unambiguously states that a by-law is not effective until:

“(a) the owners of a majority of the units in the corporation, or such other number of owners that is prescribed, vote in favour of confirming it, with or without amendment…”

Unless a lower voting threshold is prescribed in the regulations, section 56(10) of the Act makes it clear that a majority of the units in the corporation must vote in favour of a proposed by-law in order for it to pass, rather than the majority of units present at the meeting.

An often overlooked section of the regulations provides additional support for our position. Section 1.1(1) states that a reference to the portion of units in a corporation in the Act or regulations shall be interpreted as a reference to a portion of: a) owner-occupied units; b) units that are not s.49(3) units (i.e. parking, storage, facilities or mechanical installations); or c) all units in the corporation if all units are s.49(3) units and clause (a) does not apply. Subsection (2) specifically states that subsection 1.1(1) applies to section 56(10)(a) of the Act. Accordingly, subsection 56(10) requires a majority of units in the corporation that are not s.49(3) units unless all of the units are those type of units.

As noted above, the regulations do outline various by-laws that can be passed by a majority of the units present at a meeting rather than a majority of all units in a corporation; however, you will note that a borrowing by-law is not one of the prescribed by-laws that may be passed with the support of a majority of units present at a meeting [see section 14(2) of O. Reg. 48/01].

Below you will find a chart prepared by our firm which summarizes the by-laws that can be passed by a majority of units present at a meeting, pursuant to the regulations:

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Based upon the clear language in section 56(10) of the Act and the regulations, we cannot agree that a by-law can be passed with the support of a majority of those units present at an owners’ meeting called for that purpose (unless the regulations specifically permit for a lower voting threshold). Rather, in order for a by-law to pass, a majority of all units within the corporation must vote in favour of it.

Accordingly, despite the existence of this case, it would be prudent for condominium corporations to continue to receive the support of a majority of all units within the corporation when attempting to pass a by-law, unless the regulations clearly prescribe a lower voting threshold for that type of by-law.

To Borrow or Not to Borrow? How Does the Process Work: Borrowing By-laws

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Photo by: Tom Reedy

We previously blogged about common myths regarding condominiums utilizing borrowing by-laws here https://ontcondolaw.com/2017/07/12/condo-financing-myths-debunked/

Condominiums have three ways to raise money

  1. Increasing monthly common expenses;
  2. Special assessment of owners; or
  3. Borrowing money from a lender.

As we noted condominiums typically use borrowing by-laws when they have to raise a substantial amount of money within a short period of time.

There can be a multitude of reasons a condominium may want to consider a borrowing by-law: an unexpected need to complete a major common elements repair/maintenance project before projected in the reserve fund, unexpected damage from a significant weather event (ex. the significant windstorm in southern Ontario in May 2018), or the desire to complete replacements related to a major common elements project (ex. installing new windows as part of a building envelope EIFS project). Continue reading

Condo Financing Myths Debunked

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In Ontario, when condominiums find themselves short on funds they have three options: 1) increase monthly fees; 2) levy a special assessment; and 3) borrow the money. The board could choose one option or a combination of two or three options.

One option, increasing monthly fees, works well for small shortfalls such as a deficit for a year that is unlikely to occur again in future years. It doesn’t work well with a large deficit or unexpected repair project as a shortage of cash can make it hard to pay expenses as they become due. It also doesn’t work well when the issue is an underfunded reserve fund as it could take months (or likely years) to get it back to where it should be if the reserve fund has been underfunded for years.

Levying a special assessment is never a popular decision, but sometimes it is the best option. A special assessment is the quickest way to increase funds. However, if the amount levied is too high some of the owners may be unable to make the payments and they may default. If too many owners default the condominium could be in financial trouble as it may take months or even years to complete the power of sale process to sell the units to recover the amount owing by the owners, and market values may suffer in the meantime. A special assessment might not be the best option when the amount the condominium needs to raise is quite large.

Another option is borrowing.  Typically borrowing is used in situations where the condominium needs a large amount of money in a short amount of time (i.e. 6 months). It is typically used for major repair projects or to purchase assets that the condominium is required to purchase from the declarant, such as a guest suite.

Most people are familiar with increasing fees or levying special assessments, but many people are unfamiliar with borrowing because it is much less common than the other two options. As a result, myths about borrowing are widespread in the industry.  This post will debunk some of the most common myths.

Myth #1: All of the owners must approve the loan and sign documents approving the terms of the loan.

Truth: The Act only requires the owners of a majority of the units to approve a borrowing by-law, which usually authorizes the board to borrow up to a certain amount and negotiate the terms with the lender. The owners do not sign any of the loan documents. The board negotiates the terms and signs the documents.

Myth#2: The owners have to put up their homes as collateral for the loan before the lender will loan the condominium money.

Truth: There is no security granted by the owners. No mortgage. No lien.  The security is granted by the condominium and typically includes a general security agreement over any equipment, assets, and other property owned by the condominium.

Myth#3: The condominium should never sign a general security agreement (GSA) since lenders will loan condominiums money without one.

Truth:  GSAs are common. If you have purchased or leased a vehicle in recent years you probably signed a GSA with the car company.  I asked Ryan Griffiths of CWB Maxium to explain it from a lender’s perspective. This is what he had to say:

A GSA is generally the security provided for a condo corporation loan which allows for a broad use of the loan money towards repair and remediation projects, while title to the individual units remains free of any charge or registration.  A mortgage can be an alternative if the corporation has unencumbered real property, such as a guest suite or superintendent suite.

It is unlikely that a lender would loan money to a condominium without any security at all. If they did it would likely include a very high rate of interest to compensate for the additional risks associated with unsecured loans. In short, if a condominium doesn’t want to sign a GSA with a lender it will have to find other security to satisfy the lender, such as a mortgage (if the condominium has real property).

Myth #4: The interest rates are too high for condo loans.

Truth: Twenty years ago the rates for loans to condominiums were prohibitive, but today the rates offered are reasonable for commercial rates (i.e. prime plus 2% to 4%).

Myth #5: The interest rate is the most important part of the loan proposal.

Truth: Each lender structures the loan differently so you can’t go by the interest rate alone. Look for additional fees for items like loan application review, renewals, annual fees, and other charges. Legal fees may also vary by lender, so check with your legal counsel for their feedback and experience. Make sure you are looking at all of the terms, not just the interest rate.

Myth #6: Having a loan will hurt the resale value of the units and make it hard for owners to sell their units.

Truth: A large special assessment showing on the status certificate would likely be more troubling to a potential purchaser than a loan. For some purchasers, the special assessment might be seen as more risky and unpredictable than a loan with predictable monthly payments.

There are plenty of options out there for condominium loans these days, including refinancing existing loans. Special assessments and increasing monthly fees are not the only options. Boards should talk to different lenders and find a proposal that works best for their condominium’s needs.