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Shibley Righton Condominium eBulletin 

03/24/2020 Comment on Ontario Government Order Suspending Limitation Periods
03/24/2020 Government of Ontario’s list of Essential services
03/20/2020 Collecting Common Expenses During a Pandemic: Options to Consider
03/19/2020 Open letter to the Government of Ontario
03/16/2020 Answers To Your Condo Coronavirus Questions
03/11/2020 The Coronovirus’s Impact on Condominium Living
03/03/2020 Help - Is my building making me sick?
02/28/2020 The CMRAO is conducting a survey and your input is important.
02/19/2020 Government Consultations on Topics for Reform -Condominium Act, 1998
02/19/2020 Short-term rentals are regulated in Toronto - Now What?
02/18/2020 HELP, IS MY BUILDING MAKING ME SICK?  CondoTV Lunch & Learn
02/12/2020 Estanol v. York Condominium Corporation No. 299 and Amlani v. York Condominium Corporation No. 47
02/10/2020 Shibley Righton LLP welcomes Evan Holt to it's growing Condo team!
02/03/2020 Amlani Decision Rocks Condo World: Our Thoughts On The Decision Now That The Dust Is Settling
12/20/2019 From our Family to Yours,  Season's Greetings from Shibley Righton LLP.
12/16/2019 The Holiday Season is Coming, Are You Ready? DEADLINE WARNING FOR DECEMBER 2019 LIENS!
12/10/2019 Rebuilding Consumer Confidence – Condo Living
12/09/2019 The Holiday Season is Coming, Are You Ready? DEADLINE WARNING FOR DECEMBER 2019 LIENS! 
12/02/2019 The Holiday Season is Coming, Are You Ready? DEADLINE WARNING FOR DECEMBER 2019 LIENS!
11/29/2019 Electronic Proxies vs. Electronic Voting: It is time the condominium industry considered the issues of electronic voting
11/26/2019 The Holiday Season is Coming, Are You Ready? DEADLINE WARNING FOR DECEMBER 2019 LIENS
11/11/2019 Small Claims Court JurisdictionIncreasing to $35,000 effective January 1, 2020


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Audrey Loeb Head ShotOntario had shut down many sectors of its economy in the face of the coronavirus pandemic, but the residential renovation industry has continued - despite concerns about the access to work crews in multifamily buildings. 

This is a excerpt from Audrey Loeb's article that appeared in the Globe and Mail (Ontario Edition) on April 17th, 2020.

Please click here for the full article

Date_Published
2020-04-17
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Megan Mackey Head Shot

Condo corporations may lawfully ban pets in certain circumstances, says Toronto condominium and commercial litigator Megan Mackey.

Global News recently reported on a campaign by residents of two Toronto condo buildings seeking to overturn their board’s recently introduced ban on pets.

Mackey, a partner with Shibley Righton LLP, says the dispute is a useful reminder to unit owners and renters of the power Ontario’s Condominium Act confers on boards to make their own rules and bylaws.

“The only restriction on the condo corporation when implementing rules is that they must be reasonable,” she tells AdvocateDaily.com. “Rules cannot be implemented to ban pets unless there are reasons to do so, such as safety and security issues.

“As long as it’s within the realm of reasonableness, a court won’t interfere or overturn the rule. It’s not possible to comment on this precise instance without knowing all the facts,” Mackey says.

According to the Global story, the Toronto condo corporation’s ban is complicated by the fact that the property has a series of designated dog areas and a dedicated “dog run.” One resident quoted by the news outlet said she had moved there in 2017 “partially because it’s a pet-friendly community.”

The woman — who also fosters shelter dogs — is spearheading a petition to reverse the ban, which a residents’ association spokesperson blamed on the irresponsible actions of a minority of pet owners in the buildings.

A lawyer for the condo corporation explained to Global that the pet prohibition passed in 2016 following concerns about “the cleanliness of hallways, elevators, the lobby and other common areas.” But its in-force date was postponed more than two years to allow residents to register grandfathered pets already on the property.

Mackey says the condo may wish to explore other options to target troublesome pet owners, noting that building managers in Florida have caused a stir by threatening to identify rogue owners via DNA kits using samples from abandoned dog feces.

“The idea is that you require each dog to be registered with a sample of their DNA, and then you can perform tests to find out which owners are not cleaning up after their pets,” she says. “But from what I’ve heard about the Florida cases, the cleanliness problem went away as soon as the system was implemented.”

Mackey says it would also be relatively simple for the corporation to reverse its decision if a majority of the board agreed, and owners were in favour of the change.

“The rule doesn’t have to be permanent,” she says.

In other cases, Mackey says Canadian courts have upheld bans on pets over a certain weight and limits on the number of pets per unit.

“People love their pets, so my message to someone who is looking at buying a condo is to check whether it is a pet-friendly building, and the likelihood of it remaining that way,” Mackey says, adding that she would encourage prospective purchasers to have a lawyer check the condo’s rules, bylaws and declaration.

“The declaration is much more difficult to change than rules, so if the declaration explicitly permits pets, then the board does not have the same power to change that,” she says.

 

Date_Published
2019-11-12
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Audrey Loeb Head Shot

Tarion Warranty Corp.’s recent efforts to provide more consumer information on the risks of pre-construction condominium purchases don’t go far enough, and the new home regulator should take an aggressive role in requiring more standard-form agreements, Toronto condominium lawyer Audrey Loeb tells The Globe and Mail.

As of Jan. 1, 2020, Tarion will require “any vendor selling pre-sale condominiums to include a two-page information sheet about the project that will assist buyers in appreciating the potential pitfalls in signing a contract to buy an unbuilt home from plans,” the Globe reports.

“The form will compel sellers to spell out early-termination conditions, any potential title restrictions on the proposed land, as well as expected completion dates and a disclosure about whether a building has obtained zoning approval,” the article continues.

Loeb, a partner with the Toronto office of Shibley Righton LLP, tells AdvocateDaily.com none of this will mean anything to the average condominium purchaser.

“Tarion created a late closing form to be attached to all agreements of purchase and sale for condominiums — it is 10 pages long. How does that help the consumer?” she says.

“It’s just more stuff for people to read,” Loeb tells the Globe. “The problems of cancellation are important to people, but it’s truly the tip of the iceberg of the issues that affect the buying public when it comes to condos.”

She tells the Globe that many agreements of purchase and sale together with the disclosure packages for condos are already 100-plus pages and are filled with “thickets of legalese that can lock buyers into such things as unspecified extra fees, options to extend the completion date” for years into the future, and contracts, which bind the future condominium corporation to unfair terms, many favouring the developer or associated companies.

The newspaper reports that so far this year, seven projects have been cancelled, representing more than 2,100 units.

“Cancellations are inevitable. … People should just understand the risks and be prepared to deal with that,” Tarion CEO Howard Bogach told the Globe.

“I am disturbed by the rights developers are allowed to retain and which can impact what a purchaser gets,” Loeb says. “I’ve been saying that Tarion has to take a more aggressive role in requiring more standard-form agreements” and the Government of Ontario needs to see the consumers’ side of things.

A report recently tabled by Ontario’s Auditor General Bonnie Lysyk says Tarion has failed thousands of new homebuyers by placing the interests of builders ahead of theirs, the CBC reports.

Lysyk found the agency, which also regulates the industry and is controlled by a board made up largely of developers, has until recently operated with very little oversight and was allowed to write its own rules.

“Lysyk found most of the public complaints about Tarion’s dispute resolution process were justified, and that the Ontario Home Builders Association ‘had disproportionate influence over Tarion’s decisions and operations,’” the article states.

 

Date_Published
2019-11-11
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Armand Conant Headshot

A growing number of condo corporations are struggling to get reasonable insurance coverage, says Toronto condominium lawyer Armand Conant.

“It’s a mammoth problem,” says Conant, a partner with Shibley Righton LLP. “In light of the number of claims being made by condo corporations, insurers appear to want to get out of the industry.”

Since its inception, Ontario’s Condominium Act has required a condo corporation to “obtain and maintain insurance on its own behalf and on behalf of the owners, for damage to the units and common elements that is caused by major perils” or other circumstances identified in the corporation's declaration and bylaws.

According to the Act, those major perils include fire, lightning, smoke, windstorm, hail, explosion, water escape, strikes, riots or civil commotion, impact by aircraft or vehicles, vandalism, or malicious acts.

Although the legislation makes no mention of the availability of coverage, it does specify that the coverage level must be high enough to meet the replacement cost of damaged property.

“Since the 1960s, condos have been able to obtain insurance. If they’ve had frequent claims, then their premiums and deductibles usually go up,” Conant tells AdvocateDaily.com.

But in the last two years, he says industry watchers have noticed a large spike in premiums and deductibles, leading to the suspicion that insurers are trying to get out of the business.

One of his clients was forced to make three substantial claims following flood damage, two of which the condo board believes resulted from faulty construction by the developer.

While the claims went smoothly, the insurer informed the corporation that it would not renew its coverage when the policy expired.

“They were scrambling around, trying to find insurance,” Conant says, explaining that the board only managed to obtain new coverage in the nick of time through its broker by cobbling together a consortium of insurers prepared to take on the risk of further claims.

“It got down to the last day before the existing policy was to expire, and it was only possible through the work of many people,” he says.

But the board’s relief at getting some coverage in place was tempered by the terms of the deal, which saw their deductible for flood damage jump to $500,000, while the deductible for all other claims rose to $350,000. In addition, the corporation’s annual premium more than tripled from $65,000 to roughly $225,000.

“Outside of a catastrophic event, they’re essentially paying $225,000 for the privilege of not being insured because almost all of the claims will come in under the deductible,” Conant says.

And this client is not alone, he says, adding that he’s heard of one corporation that has a $1-million deductible.

“We’ve seen case after case like this, and we believe it is on the rise. In addition, we are aware of at least three or four condo corporations who cannot get insurance at any price, at any deductible, which means the owners are left with no insurance on their building,” Conant says. “If they can get it, then the owner can’t buy adequate unit insurance to cover the corporation’s large deductible, thus exposing themselves to liability and maybe, in the most extreme cases, even losing their home.

“It’s a hot topic in the industry.”

Conant says stakeholders, such as the Toronto chapter of the Canadian Condominium Institute (CCI), have approached the government to make it aware of the growing crisis, and are also offering assistance in trying to find solutions. He says the CCI is holding a symposium on the issue on Nov. 9 at the Delta Hotel Toronto. For more information, contact info@cci.ca

 

Date_Published
2019-11-07
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Patrick Greco

Harassment is a growing concern for condo corporations, says Toronto condominium lawyer Patrick Greco.

“It’s a huge issue. Cases are coming across my desk on an almost daily basis,” Greco, partner with Shibley Righton LLP, tells AdvocateDaily.com.

While property managers bear the brunt of verbal, emotional, and more rarely, physical abuse from residents, he says security guards, board members, and unit owners have also found themselves the target of various levels of harassment.

“There are examples on a very wide continuum,” Greco says. “But we have found that the courts have a fairly short temper with this sort of behaviour, and are not giving much quarter to the harassers.”

For example, in one recent case, an Ontario Superior Court judge found a resident’s “physical misconduct” and “campaign of aggression” against an Ottawa condo’s staff, directors and unit owners constituted workplace harassment under the Occupational Health and Safety Act (OHSA).

The judge imposed an injunction on the resident, prohibiting him from communicating with almost anyone associated with the condo, except in an emergency or via a lawyer acting for the corporation.

The judge in the case also cited another decision, in which Greco successfully obtained an order on behalf of a Toronto condo corporation, that a unit owner who had been verbally abusive of staff cease and desist from uncivil or illegal conduct in violation of the Condominium Act.

In order to boost their case should legal action become necessary, Greco says condo staff or directors should meticulously document concerning incidents and set clear boundaries for residents whose behaviour risks crossing a line into harassment, such as limiting them to in-writing complaints only.

“Courts have taken the view that complaining is not harassment. People have a right to be disgruntled, within reason,” Greco explains. “What judges don’t want to see is that complainants have just been told to shut up entirely.”

In addition, he says condo corporations should turn their minds towards enacting anti-harassment policies and fully investigate any incidents of alleged harassment that are brought to their attention by staff.

“Most boards are very good and protective of their site staff, but if they fail to investigate or deal with any concerns raised by employees, they could find themselves in trouble under the OHSA for tacitly allowing harassment, especially if there are any further incidents,” Greco says.

 

Date_Published
2019-10-30
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Warren Kleiner Head Shot

Emails between condo board members are not part of the official record, but directors still have to be very careful about what they write in these online messages, says Toronto condominium lawyer Warren Kleiner.

Kleiner, a partner with Shibley Righton LLP, cites a recent Condominium Authority Tribunal (CAT) decision, where a unit owner wanted to see online messages between board members about the approval of a gas contract after the minutes of an official board meeting stated it “has already been approved by the board via email.”

In its defence, the board stated the “mere mention of emails within the minutes does not make these emails a record of the corporation,” tribunal documents state, and an “agreement to agree” in electronic correspondence is not important since formal approval of the gas contract renewal was given at a regular board meeting.

The CAT sided with the board, ruling the “emails, whether they existed or not, are not records that the [unit owner] is entitled to under the Act.”

“This is a very interesting case, as many people might have thought that if you refer to emails between board members in the minutes, a board would be required to produce those messages,” Kleiner says.

He tells AdvocateDaily.com that s. 55 of the Condominium Act states that “The corporation shall keep adequate records, including the following records...” before going on to list 12 examples, such as financial records and a minute book of formal board meetings.

“It’s not meant to be an exhaustive list, but just examples of records that have to be kept by condo boards,” Kleiner says. “There could be other things that are considered records.”

He says the tribunal’s decision makes sense, considering that condo directors often exchange emails before meetings on various subjects, which people would generally not expect to form part of the corporation’s records.

Though these types of emails have now been deemed to not be part of the official record for condo boards by the CAT, Kleiner advises directors to be circumspect about what they write in their private messages.

“There could be circumstances where those informal emails between directors are forwarded to another person,” he says. “Some board members may say things that could be perceived as an insult towards a unit owner, or they may express views they would not want to be made public.”

Once they are circulated, these emails could also be used in various legal proceedings that may arise in the future, Kleiner says.

“It’s very important to understand that once someone pushes the send button, it’s almost impossible to control where that information goes, which is why board members should exercise extreme caution and prudence with what they put in these messages.”

He says another interesting aspect to this decision is that the condo board was ordered to pay the unit owner $200 in costs, even though the owner was unsuccessful in his quest to have the board produce the emails in question.

“There was confusion about what was in the minutes, and the board was a little late in responding to the owner’s concerns in this regard,” Kleiner says. “So even though the tribunal didn’t award a penalty, it ended up awarding costs to the owner.”

 

 

Date_Published
2019-10-28
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Inderpreet Suri

Toronto condominium lawyer Inderpreet Suri has found a perfect match in her chosen sector of law.

Suri, an associate with Shibley Righton LLP's Toronto office, prides herself on her ability to connect with clients, and she tells AdvocateDaily.com that developing those relationships is one of her favourite parts of the job.

“Most of the time with clients, you get one-on-one interaction with a single person, but with condos, you’re dealing with many different individuals. There are board members, property managers, executives at property management companies, and many more,” Suri says. “My style is to always be accessible, and I like to encourage friendly and open communication.

“I’ve always been a big people person, so condo law has really worked out well for me,” she adds.

Suri says she felt destined for a career in the legal profession from an early age, driven in part by encouragement from family, including her newcomer Canadian parents.

“It was always in the cards for me to choose a career that was well respected, and I found I was immediately drawn to the legal environment,” she says. “It’s definitely hard work, but at the end of the day, it’s ultimately about helping people, which is all I really wanted to do.”

Suri kept her practice area options open during her time at Queen’s University law school. She signed up for a broad spectrum of classes, and excelled at most of them, picking up academic awards for the highest standing in both Commercial Law and Insolvency & Restructuring. In addition, Suri found time to work with the faculty’s prison law and family law clinic.

Suri articled with Shibley Righton before her call to the bar in 2018 and has been able to maintain variety in her legal practice, despite working exclusively with the firm’s Condo Law Group.

“Condo law is perfect for juggling various interests because, in addition to litigating disputes in court or tribunals, you’re also dealing with contracts, employment issues and other legal matters,” she says. “The condo law world encompasses all different types of law, so it’s a perfect match for me.”

Although the firm also acts for individual unit owners in matters, most of Suri’s work is done on behalf of condo corporations, assisting boards and management companies on a variety of issues, including advice on governance, bylaw and declaration drafting, and contractual agreements.

“Enforcement is also a big part of my practice — we help boards enforce compliance, whether by letter, negotiation, mediation, arbitration, or eventually, through court if necessary,” she adds.

Outside of the office, Suri enjoys travelling, cooking and watching movies. In addition to offering services in English, she also speaks fluent Hindi, Punjabi and Urdu.

 

Date_Published
2019-10-25
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Megan Mackey Head Shot

Consumers scored a big victory when an Ontario Superior Court judge ordered refunds of huge closing adjustments paid by purchasers of brand new condo units, says Toronto condominium and commercial litigator Megan Mackey, who represented the successful litigants.

Mackey, a partner with Shibley Righton LLP, acted in the case for a group of new condo buyers, each forced to pay between $11,000 and $16,000 for a “parks levy” adjustment on closing .

In his Oct. 10 judgment, Ontario Superior Court Justice Geoffrey Morawetz sided with the purchasers, ordering the condo developer to repay the levy with interest after ruling the clause referring to the adjustment in their agreement of purchase and sale was ambiguous, and therefore unenforceable.

“It was a big win for the little guys,” Mackey tells AdvocateDaily.com. “We’re delighted with the decision, which is a victory for consumers who can easily be taken advantage of in certain circumstances.”

Mackey says closing adjustments are consistently among the most irritating issues for buyers of new condos. While resale purchase agreements tend to match the closing price, barring some small changes to account for prepaid items such as property taxes and maintenance fees, she says newly constructed condos include numerous price adjustments to pay for things like utility connections and other development fees.

“It’s a big problem,” Mackey says. “When you buy a new condo, you look at the plans and agree on a purchase price, but then when it comes time to close, there’s a whole list of additional charges and fees that appear on the statement of adjustments, and people end up paying much more than they anticipated.”

While Tarion, Ontario’s new home warranty provider, has attempted to help purchasers understand adjustments provided for in agreements of purchase and sale, Mackey says buyers often feel pressured to pay for fear of losing deposits or forfeiting appreciation value for a property they may have bought years previously, and are frequently already living in by the time the closing date comes around.

“If you’re a developer with a 100-unit condo, and you charge an extra couple of thousand dollars to every owner, that adds up to a lot of money,” Mackey says. “But for each unit owner, it’s usually not a large enough amount to justify the time or legal fees involved with attempting to get the money back.”

However, she says new buyers have recently been empowered to take collective action in more egregious cases.

In one 2016 matter, Mackey acted for a number of buyers improperly charged thousands of dollars at closing. They each paid roughly $2,500 for the installation of water meters that were never actually installed.

The unit owners launched actions in Small Claims Court, all heard together in a single trial. The judge ultimately ruled in the residents’ favour on that issue.

In her most recent case, Mackey says the unusually large size of the adjustment charged, combined with the number of individuals who joined the action, helped make the lawsuit financially viable.

According to Morawetz’s ruling, the agreements of purchase and sale signed by the owners provided for an adjustment to cover “the amount of any parks levy or other charges pursuant to a section 37 agreement (pursuant to the Planning Act), levied, charged or otherwise imposed” on the condo development.

However, since the developer’s Planning Act requirements were satisfied by a land transfer, rather than a payment, the owners argued no parks levy was actually paid, nullifying the adjustment charge.

Morawetz was not convinced by the developer’s arguments that a levy could include a land transfer, noting that at best, its “position gives rise to an ambiguity” in the agreement of purchase and sale. Since it was a consumer contract, the judge said he was bound to interpret any ambiguity against the drafter — in this case, the developer.

“I am in agreement with the position put forth by the [purchasers]. The [agreements of purchase and sale] do not require the [purchasers] to pay for the notional value of parkland transfers to the city,” Morawetz wrote. “The [developer] is to repay to each of the [purchasers] the amount of the park levy (inclusive of HST) that each of them paid at closing together with interest.”

 


Date_Published
2019-10-23
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John Devellis Headshot

The devil can be in the details when it comes to resolving disputes between condominium neighbours, says Toronto condominium lawyer John De Vellis.

There’s an adage that lists “people, pets and parking” as being the cause of most problems with other residents, and if you want to find a solution, you have to be willing to do a little work, says De Vellis, a partner with Shibley Righton LLP.

He tells AdvocateDaily.com there are rules that govern condominiums to foster a harmonious community. However, that doesn’t mean residents should expect “absolute silence because that’s not how it is in communal living,” De Vellis says.

While he deals with many different issues for clients living in condos, noise complaints are among the most common, he says.

“It's critically important that the complaints be documents with as much detail as possible,” says De Vellis.

“A common answer we get when we respond to the complaint is, ‘It’s only one person, nobody else is complaining.’ Sometimes that’s true, but often there’s a reason for that. It can depend on the configuration of the units, for example. Perhaps nobody else can hear it.”

He says it doesn’t matter if one person complains or five — although the more corroborating evidence, the better.

However, if a resident finds himself alone in the complaint, the best bet to resolve the issue is to document the incidents in detail and find witnesses whenever possible, De Vellis says.

In many cases — except for townhouse complexes — a condominium will have a concierge on duty, which offers an excellent opportunity to put the complaint on record by someone who can corroborate the incident, he says.

De Vellis says it’s important to encourage the concierge to include as much detail in their report as possible.

“It’s sometimes frustrating to read the concierge report because of the lack of specifics,” he says. “They will say they heard a noise, for example, but they don’t say from what distance, or how loud it was. I often advise my clients to get the concierge to write more specific, descriptive reports.”

De Vellis says questions can arise with vague reports.

“If the problem is not resolved, and you have to take some kind of legal action, the report from the concierge and the person complaining are the only records I have,” he says.

If it’s not detailed, those involved may not exactly remember what happened during a hearing that is months — or years — down the line, De Vellis says.

“I’m not talking about writing a novel, just something a little bit more descriptive. A few more sentences go a long way.”

He encourages people to be “really granular” with the details.

“Make it as detailed as possible because the more you have, the more credible it’s going to be,” De Vellis says. “Note the time, the actual words you hear, the programs they’re watching on TV, the music that was playing at the time. That kind of detail is usually very helpful.”

He says you can try recording what you hear, but be aware that the video- and tape-recording capabilities on some smartphones may not be sophisticated enough to pick up everything.

“We try it all the time, and the results are often underwhelming,” De Vellis says, adding that when cases are in dispute, they may have a sound test done, although it can be expensive.

“It’s also a good idea to involve the corporation’s lawyer early in the process,” he says.

“The bottom line is that the condo corporation has an obligation to enforce the rules,” says De Vellis. “But if legal proceedings are necessary, the judges will expect the corporation to present a thorough case that the noise is excessive.”

 


Date_Published
2019-10-22
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Audrey Loeb Head Shot

Having a code of ethics in place for a condominium’s board of directors assists in holding members accountable if they become disruptive, problematic or violent, says Toronto condominium lawyer Audrey Loeb.

“One of the things that we recommend to our clients is to approve a code of ethics that governs the board members and that board members should be required to sign,” says Loeb, a partner with the Toronto office of Shibley Righton LLP.

“Many of our corporations have it in their bylaws as a qualification for board membership. If there is a problematic board member, and the proper procedures are followed, then the board can decide whether to remove the member.”

Without a bylaw in place, a board member can only be removed by a vote of 51 per cent of all the unit owners, she tells AdvocateDaily.com.

“With a bylaw that disqualifies the person from board membership if he or she fails to comply with a code of ethics — and the board follows the right procedures and gives the offending board member an opportunity to speak to the accusations — then you can remove them without a vote by unit owners,” Loeb says.

If a condominium corporation becomes aware of an incident, she says it has an obligation to deal with it.

“But a condominium corporation is not in a position to prevent something from happening, it’s only in a position to try to ensure that it doesn’t happen twice,” Loeb says, pointing to an Ontario Superior Court of Justice decision involving an assault by a board member.

In that matter, the plaintiff brought a claim against a condo corporation for failing to protect her from an assault by the defendant at a board meeting.

According to court documents, the assault that took place at a 2011 meeting of a condo board, where the plaintiff and defendant began to argue, and he struck her on the head with a chair.

At issue was whether the condo corporation had a duty to prevent an assault by a meeting participant.

“It would be unduly onerous to find that a condominium corporation has a duty to provide security at every Board meeting to prevent a potential assault. Even given the contentious environment at the Board in this case, it would not be reasonable to require the condominium corporation to provide security,” wrote Justice Sandra Nishikawa. “It is reasonable to expect individuals who participate on the boards of condominium corporations to adhere to a standard of conduct that includes, at a minimum, refraining from assaulting another participant.”

Loeb, who was not involved in the matter and comments generally, says the corporation’s role is not an anticipatory one.

“If you’re having meetings and there’s a board member who is threatening others, then you have an obligation to remove that board member,” she says. “But I don’t think you can protect a board member if, out of the blue, someone decides to throw a punch.”

A code of ethics and bylaw that cover that type of behaviour can be used to remove that member, Loeb says.

“For example, we would send a warning letter to the problematic board member. If the behaviour happens again, it’s grounds for removal. Then we would hold a hearing to determine whether the conduct is such that the individual board member should be removed from the board. The person in question will have an opportunity to speak to the accusations as will the other members. Then the board will make a decision as to whether they can be removed,” she says.

Loeb says another option is to give the disruptive board member a warning and state that they cannot attend meetings if they don’t “behave.” If there are continued disruptions, the other board members can remove themselves from the meeting and finish the session elsewhere.

“But it doesn’t foster a good environment,” Loeb says. “I would rather the person know that failure to meet certain criteria can result in the board members deciding that the offending individual should no longer be a member.”

 

Date_Published
2019-10-15
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Luis Hernandez Head SHot

A legal battle between a celebrity and his Manhattan neighbour may be a rather extreme example of a fairly common condominium dispute, says Toronto condominium lawyer Luis Hernandez.

The actor recently won an injunction requiring his neighbour to stay off of his property as part of a lawsuit launched in 2017 that accused the man of carrying out a “campaign of harassment” that began when the actor and his former spouse started $1 million renovations, reports PageSix.com.

The judge ruled there was ample evidence to support a claim of harassment and intimidation against other residents in the building, including the co-op board president, who had submitted sworn statements to support the actor’s position.

While fact-patterns like this are less common in a typical condo dispute, issues between neighbours are nothing new, Hernandez tells AdvocateDaily.com.

“Condos are a sort of microcosm of society, especially in large areas like Toronto,” he says. “They’re these enormous towers with hundreds of units, with residents from all sorts of socio-economic, ethnic and religious backgrounds.”

As a result of people living in such close proximity, the likelihood of conflict increases significantly, and condo boards often have no choice but to get involved, says Hernandez, an associate with Shibley Righton LLP’s Toronto office.

“Disputes between neighbours often end up becoming a problem for the condo board by virtue of the fact that it’s happening on their property,” he says.

While such disputes are often unavoidable, the key is for condo boards to be prepared with processes and rules that mitigate them, if possible, but also allow for any disagreements to be handled appropriately.

For example, in Ontario, if a condo owner wants to make renovations to their unit, rules can set out such things as how the work will be done and when it needs to be completed, times the contractors are allowed to enter, what to do with debris and what elevators to use, Hernandez says.

“The solution is to create processes — and follow them — and hope there won’t be any issues between neighbours,” he says. “But the inevitable reality is you’ve got people in close quarters interacting with others, and there is only so much that can be done to mitigate these kinds of disputes.”

Once the disputes arise, Hernandez says a condo board should be diligent in using the resources at its disposal to try and best address the situation, including contacting their lawyer, property manager and any other third party outside the board who can assist without escalating tensions.

In the end, it’s best to be proactive rather than reactive, he adds.

“In many circumstances, it’s unavoidable for the board to get involved,” Hernandez says. “Sometimes it’s better to get involved earlier and address it head-on instead of letting it fester and getting dragged in once the situation is much worse.”

Date_Published
2019-09-25
Description

Megan Mackey Head Shot

A recent court ruling that saw a condominium owner lose her unit due to the actions of her tenant is good news for condo residents but could have a “chilling effect” on investors, says Toronto condominium and commercial litigator Megan Mackey.

The Ontario Superior Court of Justice found that a woman was responsible for her tenant’s legal costs in a failed lawsuit and granted possession of the unit to her condominium corporation so it could be sold to pay $86,000 in fees.

Mackey, a partner with Shibley Righton LLP, says she was “quite shocked to see that legal defence costs could be tacked onto the unit — not for what an owner did, but for a lawsuit filed by a tenant.”

While unusual, the ruling does have some positive ramifications, she says.

“This case came as a surprise to some of us in in the industry,” Mackey tells AdvocateDaily.com. “This is a really novel decision because condominium corporations get sued all the time, and it causes them to incur a lot of costs.

“Until now, it’s the other unit owners that have had to pay to defend these lawsuits, but with this decision, when an owner or their occupants lose, they’re going to end up paying all of the condominium’s legal fees.”

She says “many unit owners will be really pleased” with the ruling because such legal fees have been passed on to them. It can be costly, particularly at complexes where there have been many lawsuits, Mackey says.

However, if you are an owner and rent out your unit, the judgment should serve as a warning, she says.

“This decision will certainly have a chilling effect for many investors in the city,” says Mackey. “My message to investors is to be very careful who you let move into your unit.”

She says the case is a lesson in knowing and understanding the rules that govern a condo.

Court was told an owner rented her unit to a man who was in constant conflict with the condominium corporation and building management and filed a $5-million lawsuit.

The lawyer representing the corporation recognized the claim was unlikely to succeed and warned the owner that failing to dissuade her tenant from moving ahead with court action could ultimately have serious consequences for her.

The owner failed to heed the advice, and her son swore an affidavit that supported the suit, which failed at trial and on appeal.

Court ordered that the legal costs be added to the common expenses of the owner’s unit. When she failed to pay the outstanding fees, the corporation registered a lien against her unit.

Mackey, who was not involved in the case and comments generally, says she commends the corporation’s lawyer for bringing the consequences to the woman’s attention at the outset of the dispute — before legal costs were incurred.

She also notes that the owner claimed she wasn’t properly notified of the lien against her unit. However, the corporation maintained they sent her notices to the address she provided, which was the procedure according to condo bylaws.

“We often face issues where owners complain they didn’t get the notice,” Mackey says. “In this case, the court had no interest in listening to that, which I thought was excellent.”

She says it’s not unusual for unit owners to pay legal costs when they have physically damaged the complex, or disturbed other residents because of their conduct.

“It’s common to see legal costs awarded against owners, but in all of the cases I’ve been involved with it’s where the owner or the occupant physically does something that causes the condominium to incur costs,” Mackey says. “But in this case, it was just paperwork. It was a lawsuit.

“I think this decision is unique because it’s the first time that the courts have agreed that even though these monetary losses were not necessarily tied to physical behaviour in the building, it can all be charged back against the unit.”

She says it will be interesting to see the impact the judgment has on the industry.

“Although this is new and a change for those of us who practise in this area, maybe it’s a change for the better. Time will tell,” Mackey says. “This is a whole new level of scrutiny that investors should consider when choosing a tenant.”

Date_Published
2019-09-17
Description

Megan Mackey Head ShotIf you live in a condo and want to build a deck or make other changes to your common areas, work with your board to enter into a mutual agreement that will make it permanent to avoid future cost and conflict, says Toronto condominium lawyer Megan Mackey.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-09-06
Description

Condo dwellers who want to show their support of candidates in political elections should do it in a way that doesn’t involve posting signs in windows or common areas of the building, advises Toronto condominium lawyer Warren Kleiner.

“Most condominiums have rules that dictate what can be visible from the outside, and they invariably provide that only white or off-white window coverings may be visible from the exterior,” says Kleiner, a partner with Shibley Righton LLP.

“Uniformity is really important for market value,” he tells AdvocateDaily.com. “Buildings with a uniform white appearance look sleek and modern, but that will be marred if election posters suddenly start appearing in windows or on balconies.”

Kleiner says that condo corporations have the ability to pass reasonable rules that are intended to protect the value of the asset, adding that most people accept these limitations as being reasonable.

“If boards were to allow political advertising on exterior-facing areas, that will not only be aesthetically unpleasing, but it could reduce the value of all the units in the building,” he says.

At any time of the year, items such as flags and pop culture posters are typically banned from balconies and exterior windows in condos by the same rules that prohibit political advertising, he says.

“If someone is plastering exterior windows with Union Jacks and Pink Floyd posters, other people may not want to live there. These items belong on the wall in a teenager’s room, not on the exterior of the building.”

He says a lack uniformity affects the overall look of the structure and therefore the value of the units within it.

If an owner wants colourful curtains that is fine, Kleiner says, as long as the back of the curtain facing the street is white.

“If you are in a building where somebody is flying a British flag, and someone else is hanging bright red curtains, that will affect the look of the building from the exterior and will take away from its market value,” he says. “Condo boards do not care what you have facing into your unit.”

He says the Condominium Act does make one “interesting” allowance when it comes to elections, as condo boards must allow candidates or their authorized representatives onto the property during national, provincial, municipal or school board election campaigns.

“In a democracy, it is imperative that candidates be allowed to canvass and distribute their election material,” he says. “But that freedom does not extend to a unit owner being able to post signs on the common elements, nor are candidates allowed to post signs on the property.”

Some condos have internal message boards where owners typically advertise items for sale or parking spots for rent but don’t even think about putting a political poster there, Kleiner says.

“These boards aren’t meant to start political debates, or deal with something that is outside the building,” he says.

Kleiner says another interesting twist of this legislation is that it does not address the rights of those running for condo board elections.

“If you are a unit owner, but you don’t live in the building, your access could be limited if you want to distribute campaign material.”

He says policies regulating the process of running for a position on the condo board vary, with some condominiums allowing unit owners to randomly knock on doors and promote themselves, while others have rules preventing it.

Date_Published
2019-09-04
Description

Armand Conant Headshot

A recent Ontario Superior Court decision highlights the restricted rights that condominium unit owners have to renovate compared with traditional freehold homeowners, says Toronto condominium lawyer Armand Conant.

The judge in the case ordered a unit owner to reach an agreement with his condominium corporation over issues including maintenance and liability related to a deck installed in the backyard of the unit.

Because all backyards in the 180-unit condo corporation are considered exclusive-use common elements, the judge concluded that, given the nature of the deck, its installation constituted an “alteration, addition or improvement to the common elements” under s. 98 of the Condominium Act1999 requiring an agreement to, among other things, clarify the ownership of the deck, as well as responsibility for its maintenance and insurance.

“The deck is clearly an addition to the backyard,” the decision reads. “It is something that requires maintenance, changes the overall appearance of the backyard, and can also give rise to potential liability on the part of the condominium corporation. An s. 98 agreement is clearly required if the respondents intend to retain the deck.”

Conant, a senior partner in the Condominium Law Group with Shibley Righton LLP, tells AdvocateDaily.com that the dispute is quite common and usually boils down to unit owners not being familiar with the rules of condo living.

“Many people just don’t know what condos are, or don’t have it properly explained to them when they are buying a unit. They think it’s just like buying a house, where you can do whatever you want with your own property,” he says. “There are many advantages that come with living in a condo, but there are also certain obligations and restrictions.

“This decision reaffirms what we have been advising clients about s. 98 — you can’t alter the common elements, including the exclusive-use common elements, without the agreement of the board and compliance with the Condo Act and the condo corporation’s declaration, bylaws and rules.”

According to the decision, the condo’s property manager only discovered the deck, which covered almost half of the backyard, after its installation. The unit owner did not initially respond to the board’s request to enter into an s. 98 agreement, as contemplated by the Act and the condo corporation's declaration.

In court, the unit owner claimed he should not be forced into the agreement because the unsafe, muddy and slippery condition of the yard made the deck’s construction necessary.

While sympathizing with the owner’s position and acknowledging the usefulness of the deck, the judge noted that the condo corporation was not refusing to allow the installation to stay.

“Rather, it is merely requiring that a section 98 agreement be entered into to clarify the terms of maintenance, and to set out the respective liability in the case of injury. Not only is this a reasonable request, but it is required by the Act,” the judge found. “In my view, a section 98 agreement is necessary purely from the perspective of ongoing maintenance and potential liability.”

“The fundamental point is that alterations by owners to the common elements, including their exclusive-use common elements, occur at the discretion of the board,” Conant says.

Condo boards often take a firm stance on individual cases of alterations by insisting on compliance with the Act and their declaration in order to avoid disputes with other unit owners further down the road, he says.

“They don’t want to set a precedent by allowing one person to do something today when another request could come along in a few months or years,” says Conant, who was not involved in the matter and comments generally. “That’s an issue many corporations struggle with.”

Indeed, differential treatment to unit owners could leave a condo corporation exposed to claims of oppression, he adds.

In the Superior Court case, the owners argued the portability of the deck should weigh in their favour and claimed another unit owner in the same building had installed a similar structure but was not required to enter an s. 98 agreement. Instead, they alleged the request was made of them as a means of harassment. But the judge did not agree.

“Just because other tenants were able to circumvent the requirements of the Act and declaration does not mean the requirements have been waived,” wrote the judge. “No doubt, if there was clear evidence to indicate that the applicant was seeking enforcement purely as a means to harass the respondents, a court would not likely assist in the request. However, in this case, it is clear that a section 98 agreement is required and the request is more than justified in the circumstances. I do not accept the respondents’ position that the request has been made by the board purely to harass them.”

Conant says, "Owners have to remember that they do not have an unfettered right to make alterations. So while their home is still their castle, they may not be absolute king of it."

 

Date_Published
2019-08-28
Description

Deborah Howden Head Shot

There’s nothing in the Condominium Act that specifically speaks to a ban on pets, but condo corporations can create restrictions and rules to enforce the type of animal and how many an owner or resident can have in a unit, says Toronto condo and human rights lawyer Deborah Howden.

Howden, a partner with Shibley Righton LLP, tells AdvocateDaily.com that s. 58 of the Condominium Act speaks to a condominium corporation’s rules. Specifically, it states a condo corporation is entitled to enact rules for the following reasons:

  • to promote the safety and security of owners and their property, as well as the corporation’s assets
  • to prevent unreasonable interference with resident’s use and enjoyment of units and common elements

In Ontario, there are guidelines related to the Human Rights Code on what condominium boards can either prohibit or restrict.

“A pet ban means you may not have any pets at all in the unit, while a pet restriction means that you can have a pet, however, there are guidelines on either the types or number of animals you can have in the unit,” says Howden.

For example, she says it is common to see condominium documents spell out in a declaration or rule as to the types of pets condominium residents can’t keep.

“It speaks to whether you and your pet have an unreasonable interference with residents’ use and enjoyment because there is barking or the animal is a nuisance,” Howden says.

Other restrictions may limit the number of pets allowed and/or the animal’s size.

“That may mean that you can’t have two pets in the unit, or there may be a height or weight limit,” she says.

Typically, livestock, fowl, or other such animals are not allowed.

“Even though you may be able to keep one dog that is under 25 pounds, the nuisance issue is another facet to consider. Most condominium corporations' governing documents would contain a provision regarding bothersome pets,” Howden says.

“This relates to behaviour. If the pet acts in a manner that is dangerous to other residents or creates another nuisance — for example, persistent barking, lunging at other owners or pets, or continual defecation on the common elements — then the board can typically require the pet be removed indefinitely on relatively short notice,” she says.

Pet restrictions come from two areas of the condominium document — in a declaration, which is the corporation's governing document, or by rule.

Howden says if restrictions are contained in the declaration, they do not have to be reasonable. However, if done in a rule, then the restriction has to be reasonable, according to what the courts have said.

“So if you have a rule that says no pets are allowed, the condominium corporation may have difficulty enforcing it,” she says.

“If there is an outright ban in the condominium declaration, because that doesn’t have to be reasonable, it’s enforceable. However, even the declaration is subject to the Human Rights Code, which specifically requires a housing provider to accommodate a disability or other prohibited grounds up to the point of undue hardship, Howden says.

For example, service or emotional support animals are not considered pets because of the assistance they provide to the owner. As such, the corporation is obliged to accommodate those animals up to the point of undue hardship, she says.

“If a particular guide dog barks all night, or lunges at residents, then the Human Rights Tribunal may find that accommodation creates undue hardship. That particular resident may be able to use a different service animal to accommodate the disability,” Howden says.

Even if there is a note from a medical practitioner saying a certain resident needs a particular dog or another support animal, the condo corporation is legally entitled to follow up with any relevant and necessary information and the resident must co-operate in that process, she says.

“The rules apply to tenants and condominium owners equally. Tenants are also bound by the condominium documents of the corporation,” Howden says.

Date_Published
2019-08-28
Description

Megan Mackey Head Shot

Residents will struggle to challenge condo-imposed bans on balcony barbecuing, says Toronto condominium and commercial litigator Megan Mackey.

Mackey, partner with Shibley Righton LLP, says Ontario’s Condominium Act gives condo corporations broad power to set their own bylaws regarding behaviour, not just in common areas, but also inside an owner’s unit.

Some of the most problematic — yet common — restrictions involve smoking, pets and parking, but barbecue bans are not unheard of, Mackey tells AdvocateDaily.com. And while rules can be challenged in court, she says unit owners and residents face an uphill battle to overturn them.

While little of the existing case law deals with barbecues specifically, she says decisions concerning balcony, patio and terrace furniture, such as pergolas or trellises, suggest judges will give a great deal of deference to the condo board that set the rule in question.

“As long as the rule is reasonable and promotes the safety of people in the building, the court probably won’t interfere, so condos are pretty free to do whatever they deem fit,” Mackey says.

In fact, she says there is a stronger case to be made that barbecue restrictions are justifiable for safety reasons due to the smoke and odour concerns that come with a grill, as well as the potentially flammable propane power source.

“It doesn’t seem at all unreasonable to impose a ban in cases where you have balconies near to other residents’ windows if the smoke can blow in,” Mackey says.

She says some condos draw a distinction between propane and electric barbecues, acknowledging the reduced fire risk attributable to the plug-in version.

“Even with an electric barbecue, there are still no guarantees it will be allowed on the balcony. The building would have to be designed in such a way that odours and smoke will not blow into other units,” Mackey says.

For prospective condo owners who regard the right to barbecue as make-or-break, she advises them to carefully read the condo’s declaration and bylaws before committing to any purchase. Some condo corporations have made a virtue of their own permissive rules regarding barbecue use, Mackey adds.

“There are buildings where dedicated gas lines have been put out to terraces or balconies, which eliminates at least the safety concerns about propane tanks,” she says. “Then there are other situations where the condo has a very large terrace or rooftop patio, where barbecues are installed for communal use, or where owners are allowed to keep their own.

“Hopefully that would meet people’s needs. It would certainly be nicer to use a barbecue on your own balcony, but it’s not always feasible,” Mackey says.

 

Date_Published
2019-08-20
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Audrey Loeb Head Shot

A condominium management team that objected to a Jewish condo owner attaching a mezuzah to the doorframe of his residence highlights the importance of seeking legal advice before taking action, says Toronto condominium lawyer Audrey Loeb.

“It’s easy for us to advise on the case law around accommodation of a person’s religious beliefs,” says Loeb, a partner with the Toronto office of Shibley Righton LLP. “Call your lawyer and seek some legal advice before firing off a potentially damaging or embarrassing letter.”

The Canadian Jewish News (CJN) reports the condo owner’s religious object came to the attention of building officials while he was out of town for work. They had entered the unit to change an air conditioner filter and had noticed the mezuzah on his door frame.

“When he returned home, he found a letter in his apartment telling him that ‘it has been brought to management’s attention that you have an item of some sorts attached to the exterior side of the door,’” CJN reports.

The letter cited condo rules saying that owners are not allowed to display, hang or affix anything to the doors of their units. In subsequent conversations with management, the resident was told he could either take down the mezuzah or place it on the inside of his door.

The resident believed his religious rights were being infringed and contacted the Centre for Israel and Jewish Affairs and B’nai Brith Canada for advice. He also posted his story on a Facebook group called Everything Jewish Toronto, the newspaper reports.

The management team later backtracked, and a condo representative was quite “apologetic,” the man told CJN. He was told the earlier condo rep was “mistaken, and I had the full right to keep the mezuzah in place.”

The condo owner accepted the apology, requested it in writing and asked that the same consideration be given to a second Jewish resident in the building, CJN reports.

While this situation appears to have been a misunderstanding and was resolved fairly quickly, that is not always the case, Loeb tells AdvocateDaily.com.

“Why put yourself in a situation where you take a position like that?” she asks. “Some condominium corporations have a tendency to think that they can function without legal advice, and they make decisions that get them into so much trouble.

“In this case, it would have been a two-minute phone call to determine the answer, which is that in 2004 the Supreme Court of Canada ruled that personal religious beliefs override the terms of a condominium declaration.

“It’s this ‘penny-wise-pound-foolish’ mentality. A prophylactic phone call to a lawyer would save would embarrassment and money,” Loeb says.

She says a condo owner faced with a similar letter from management could challenge the corporation and take it to the Human Rights Tribunal of Ontario

“At that point, a condo corporation would involve a lawyer anyway,” Loeb says. “In the meantime, you could have saved yourself all that time, expense and embarrassment.”

While she can sympathize with condominium corporations wanting to keep the doors clean, she notes most mezuzahs are small and unobtrusive.

“Prohibiting a mezuzah is different than banning a door knocker or wreath outside of the holiday period,” Loeb adds.

 

Date_Published
2019-08-16
Description

Assigning or “flipping” a condo unit is risky for both parties, so be sure to get legal advice from someone well-versed in this area of law, says Toronto condominium lawyer Warren Kleiner.

“Agreements of purchase and sale signed with developers are some of the most complicated contracts that you’re going to see. They are long, come with disclosure statements, are invariably heavily weighted in favour of the vendor, and many are entered into years before the unit is actually ready,” says Kleiner, partner with Shibley Righton LLP.

Assignment agreements arise when people buy a condo unit in a building yet to be constructed, then sell it before the complex is built, he tells AdvocateDaily.com.

“There is nothing physically for them to sell, so people assign their interest in an agreement of purchase and sale to the new purchaser, or assignee,” Kleiner says.

He advises that these agreements should only be done by experienced real estate lawyers who understand the many risks involved for both the assignee and the assignor.

“One thing that I find that is left out in a lot of these agreements is any consideration of the profit the assignor is entitled to,” Kleiner says.

He gives the example of a unit purchased for $1 million, then assigned a few years later to another party, when its value has increased to $1.1 million. The assignment contract should stipulate when the original owner is entitled to that difference, whether at the time of entering into the assignment agreement or upon closing, with consideration also given to the fact that the original purchaser put down a deposit on the unit, Kleiner says.

“Some of these assignment agreements are entered into with deposits that are substantially less than the deposit being held by the vendor. The person buying the unit should reimburse the original purchaser for the deposit, so it is their money being held by the developer, and not the original buyer’s, but I see many of these assignment agreements that neglect to deal with the idea of the deposit,” he says.

In some cases, the developer will close directly with the assignee, Kleiner says.

“In other cases, it is more complicated and we end up with a form of three-way closing as the vendor wants to deal with the original purchaser and not the assignee," he says. So now documents are coming multiple ways, which can be very complicated, as there are a number of issues about how the closing is going to work, and when monies are paid to which party."

Some agreements of purchase and sale will explicitly state that the original purchaser is on the hook for liability, notwithstanding any assignment agreement they sign later, he warns.

“So ultimately, if the person you’re assigning to doesn’t close the deal properly, you’re held liable by the vendor,” Kleiner says.

Other vendor contracts prohibit assignment agreements altogether unless the vendor has given consent, he says.

“Developers don’t want unit holders competing with them when they still have condos for sale, so they often won’t let you assign a unit until all their units are sold,” Kleiner says.

Another wrinkle is the original contract could stipulate that a fee, which could reach up to $15,000, will be charged for obtaining the vendor’s consent, Kleiner says.

When any condo unit is first sold, he says the original purchaser receives a disclosure statement, giving detailed information about the building, such as how many units it will have, what the structure will look like, if it will share facilities with adjoining buildings and how much visitor parking there will be.

Buyers have 10 days to review the agreement and back out of the deal if they want, Kleiner says.

“The assignee should also have the chance to review these documents, so they know what they are buying into,” he says. “If I’m going to be taking an assignment of a new condo, I don’t want to later find out that three rental buildings are going to be sharing our pool, which I will not know unless I have a chance to look at the disclosure.”

Considering the complexity of assignment agreements, Kleiner says it is not surprising that some real estate lawyers refuse to handle them.

“There are all these different things that you really have to be careful about,” he says. “However, if the agreement is done properly, with the unit going to the right person and the assignor getting the money he or she is entitled to, then everyone will be happy.”

Date_Published
2019-08-09
Description

Armand Conant Headshot

Owners cannot prevent condominium corporation representatives from entering their units if they are fulfilling the corporation’s duties under the Condominium Act and if reasonable advance notice has been given, says Toronto condominium lawyer Armand Conant.

“It’s not uncommon when there’s a complaint — usually about odours or excessive noise emanating from a unit, both of which the corporation is legally required to investigate — that the owner will refuse entry, and say there is no proof that anything improper is happening,” says Conant, senior partner in the Condominium Law Group with Shibley Righton LLP.

He cites a recent Ontario Superior Court of Justice decision, which sets out the responsibilities of both unit owners and corporations with respect to this issue.

Court documents state that a unit owner complained about noise coming from the penthouse above. The sound was believed to be caused by vibrations in a staircase connecting the two floors of the upper unit.

When the condominium corporation's representative requested entry to inspect the staircase, the owner refused, and even obtained a notice under the Trespass to Property Act, barring entry to his unit.

“I’ve never seen an owner do that before in these types of cases,” says Conant, noting the unit owner is a lawyer.

The condominium board took the case to court and the judge granted approval to “enter the unit on one or more occasions in order to inspect and investigate whether there are noises or vibrations emanating from the staircase in the unit that could unreasonably interfere with the use and enjoyment of [the lower unit],” the judgment states.

“I welcome this ruling, as it spells out that condo owners cannot prevent the corporation from entering their unit — provided the board is fulfilling its statutory duties and working on behalf of the entire building,” says Conant. He explains that S. 17 of that Condominium Act states, “The corporation has a duty to control, manage and administer the common elements and the assets of the corporation … [and] to take all reasonable steps to ensure [everyone complies] with this Act.”

In this case, the penthouse owner argued — among other things — that the staircase was not part of the common elements, and therefore, the board did not have the right to demand entry to inspect it.

“The judge rejected that argument, ruling that since this was a noise complaint, and all owners have the right to the quiet enjoyment of their units, the duties and obligations of the corporation extend beyond the common elements,” says Conant.

He says this case provides clear guidance to both unit owners and condominium boards about their rights and responsibilities.

“Owners have to be very careful in refusing entry to their unit because the corporation has the right to investigate if there have been legitimate complaints from other unit owners,” Conant says. “If you still refuse entry, you may be embroiled in some sort of legal proceeding, and you could be responsible for legal costs.”

The right to enter units is not open-ended for condominium corporations, he adds, as there has to be a complaint or an issue dealing with the common elements, such as the air conditioning or heating units.

Conant says this decision lays out seven points to clarify each side's rights and responsibilities, which ultimately will help foster better relations between condo corporations and owners. He summarizes them this way:

  1. A corporation’s duties extend to the units, not just common elements and assets.
  2. In order to fulfil those duties, the corporation has the right to enter units, especially if there is a complaint from other owners.
  3. There has to be reasonable notice given about when the entry will be made.
  4. If a legitimate complaint is made against a unit owner, the board has the right to request entry without any supporting assessment of the complaint.
  5. The business judgment rule was reaffirmed, stipulating the court will not overrule a condo board decision unless it was made capriciously or unreasonably.
  6. If there has been a violation of the Condominium Act, a board can go directly to court instead of mediation and arbitration, even if the claims by the corporation include breach of the declaration, bylaw or rules.
  7. For a breach of the Act, the two-year limitation period does not apply.

“This judge reaffirmed what condominium lawyers have been saying all along,” says Conant. “It was great to see this ruling and have this issue articulated so clearly.”

 

Date_Published
2019-08-08

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