Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

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A condominium corporation recently brought an application to the court for an order amending its declaration. The application was brought under section 109 of the Condominium Act, 1998, which allows the court to amend the declaration for a condominium where it is “necessary or desirable to correct an error or inconsistency that appears in the declaration….or that arises out of the carrying out of the intent and purpose of the declaration.” The case is most interesting because of the alleged errors or inconsistencies. The case is available on CanLii for those interested in reading it in its entirety.  Continue reading

Condo fails to address smoke complaints

Smoking in condominiums has become a popular topic in recent years. A number of condominiums have amended their declarations to prohibit smoking on the common elements. Some condominiums have even amended their declarations to prohibit smoking anywhere on the property. Notwithstanding all of the amendments, there have been very few reported cases on smoking in condominiums.

In one recent case (MacKay v. Metropolitan Toronto Condominium Corporation No. 985) the owners claimed the condominium was in breach of its duty to maintain and repair the common elements and their unit. The owners complained of cigar smoke entering their unit from an adjacent unit. The owners’ insurance adjuster determined that the unit was uninhabitable. The insurer paid for the owners to stay in a hotel for 10 months. The owners reported their complaints to the condominium. The condominium did very little to address their complaints so the owners commenced an application.

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