CAT Clarifies What is Required in Section 83 List of Lease Notifications

By Victor Yee

For many years, one of the most confusing “records” that a condominium corporation in Ontario is required to keep has been the List of Lease Notifications under Section 83(3) of the Condominium Act, 1998 (the “Act”).

Under Section 83(1) of the Act, unit owners who lease their units or renew a lease of their units must, within 10 days, notify the condominium corporation by providing certain information and documentation. Under Section 83(1)(b) of the Act, the unit owner must either provide a prescribed lease summary form, or provide a copy of the lease agreement itself.

Under Section 83(2) of the Act, unit owners must notify the condominium corporation within 10 days if a lease of their units is terminated and not renewed.

As required by Sections 83(3) and 55(1)(6.) of the Act, a condominium corporation must keep an “adequate” record of the notices it receives under Section 83 of the Act (a “List of Lease Notifications”). This List of Lease Notifications is a “core record” and must be disclosed to a unit owner within 30 days of the Request for Records therefor.

Although the Act sets out the statutory obligation to maintain a List of Lease Notifications, what constitutes an “adequate” List of Lease Notifications has been a point of contention in many cases in the Condominium Authority Tribunal (“CAT”).

CAT Decisions: Moving Away from Chai

In a case called Chai v. Toronto Standard Condominium Corporation No. 2431, 2022 ONCAT 142 (“Chai”), the CAT held that the List of Lease Notifications must include 3 columns:

1. the unit number that has submitted a Section 83 lease notification;

2. the type of notice that was received (i.e. a copy of the lease agreement, a lease summary form, or a notice of lease termination); and

3. the date upon which the notice was received.

However, at least three subsequent CAT decisions have called Chai into question. CAT Members are not bound by the rulings rendered by CAT Members in other cases, so subsequent CAT Members can depart from the ruling in Chai.

In those subsequent decisions, the CAT held that all that is required to be included in the List of Lease Notifications is a list of the units that are currently leased, according to the Section 83 lease notifications received by the condominium.

Based on these more recent decisions from the CAT, it appears that the onerous 3-column requirement initially set out in the Chai decision is no longer the standard.

Practical Takeaway: Keep Three Columns, but Disclose One

Despite these recent CAT cases, condominium corporations might still want to continue keeping all 3 columns of information in its internal draft of the List of Lease Notifications; and then if a Request for Records is received, it can choose to only produce the first column of unit numbers.

That way, even if a subsequent CAT Member believes that there is good reason for the condominium to produce all 3 columns to a particular owner, the condominium is not scrambling to go back through the unit files and re-insert the missing information in its List of Lease Notifications.

Reminder: Align the PIC with the List of Lease Notifications

Lastly, one final note about the List of Lease Notifications that is worth mentioning here. Another point of confusion, which may lead to litigation in the CAT by unit owners who notice the discrepancy, is that a condominium corporation’s semiannual Periodic Information Certificate (“PIC”) must set out the same number of units that are on its List of Lease Notifications.

Condominium managers sometimes insert a different number on the PIC than the total number of units listed on the List of Lease Notifications; perhaps due to a mistaken belief that the number on the PIC should be the amount of units that are suspected to be leased and/or have off-site owners based on their mailing address, rather than the amount of units that have formally provided Section 83 notices.

With the added clarity of recent CAT decisions and the less-onerous single-column requirement for the Section 83(3) record, condominium corporations should be vigilant in ensuring that the number of leased units on the PIC matches up with the total number of units on the List of Lease Notifications.