Whose Notice is it Anyway?

038.jpg

The Condominium Act, 1998 provides that an owner is entitled to notice when a condominium corporation takes action to perfect and enforce a lien, however, the recent decision in Mei Ki Ching v Carleton Condominium Corporation No. 203 demonstrates that a spouse that is not a registered owner of a unit may be entitled to the same notice.

Facts

  • McIntosh (the “Owner”) is the sole registered owner of a unit within the condominium plan (the “Unit”);
  • Ching (the “Spouse”) is not a registered owner of the Unit;
  • The Unit was the matrimonial home of the Owner and Spouse;
  • The Owner and Spouse separated in July of 2014;
  • The Owner continued to occupy the unit after separation;
  • In May of 2015, the Spouse registered a designation that the unit was the matrimonial home (the “DMH”);
  • The DMH contained the Spouse’s name and current address;
  • In March of 2017 the Owner defaulted in the Owner’s contributions to the common expenses of the condominium corporation;
  • In March of 2017 the condominium corporation began taking steps to perfect and enforce its lien in accordance with the Condominium Act, 1998;
  • The condominium corporation eventually takes possession of the Unit; and
  • After the condominium corporation took possession of the Unit the Spouse obtained an order granting her exclusive possession of the Unit and vesting the Unit in her name.

The Decision

The Family Law Act, 1990 makes it clear that each spouse has an equal entitlement to the matrimonial home and to give effect to such equal entitlement, a spouse with the right of possession in the matrimonial homes has the same right of redemption or relief against forfeiture as the other spouse and is entitled to the same notice respecting the claim and its enforcement or realization.  The provisions of the Family Law Act, 1990 further required the condominium corporation to provide notice to the Spouse at the usual or last known address of the Spouse or, if none, the address of the matrimonial home.

Despite being aware of the Spouse’s current address because of the registration of the DMH, the condominium corporation failed to provide notice to the Spouse when it took actions to perfect and enforce the lien.

The Court found because reasonable inquiries (in this case, a title search for a nominal fee) by the condominium corporation could have made the name and current address of the Spouse known to the condominium corporation, the condominium corporation was required to provide the Spouse with same notice that was provided to the owner respecting the lien and its enforcement.

Because of the condominium corporation’s failure to provide the required notice, the Court found the lien to be invalid against the Spouse, although the Spouse was required to make certain payments towards common expenses, a special assessment, and late fees.

The Issue for Condominium Corporations Generally

In this case, the DMH provided the condominium corporation with all the information it required to effect proper notice on the Spouse.  Other than a title search, which, absent the registration of a DMH would likely not provide a condominium corporation with the necessary information to determine if there is a spousal interest in the unit, the Court provides no guidance as to what efforts a condominium corporation must take to be considered to have made reasonable inquiries.

Is a condominium corporation to make inquiries of the registered owner? Search marriage records? Contact the lawyer that acted on behalf of the owner when such owner purchased the property?

In the absence of any information about a spouse, will it be sufficient to address all notices to the registered owner and spouse (i.e. John Smith and Spouse) and send them to the unit or the registered owner’s address for service?

There is no doubt reasonable inquiries will depend on the particular circumstances that surround a condominium corporation’s enforcement efforts but, the industry may not get guidance as to when the inquiries of a condominium corporation are reasonable in the circumstances until a similar case is decided.