Condo Reporter - Timely Commentaries on the Latest Developments in Condominium Law in Ontario

In a previous blog, we reported on a case, Harvey v. Elgin Condominium Corporation No. 3, where an unhappy unit owner sued the Corporation for various alleged infractions relating to the replacement of existing wooden decks, which was funded by a special assessment. All of the owner’s claims were completely dismissed by the Judge after a three-day trial. Because the condo corporation was entirely successful at trial, it sought full recovery from the owner of its legal costs, which amounted to $61,817.21. The costs decision has now been released.

The condo corporation argued that it would not be fair or equitable for all the other blameless/innocent unit owners to have to bear costs that were incurred by the unwarranted conduct of one unit owner. The Corporation felt that its claim for full indemnity was further justified because (i) the owner had made unsubstantiated allegations of deceit, concealment and bad faith on the part of the Board; and (ii) he insisted on pressing forward with the litigation after he knew, or ought to have known (long before the trial), that the claim was completely without merit.

Continue Reading

As reported in the Ottawa Citizen, in a recent drug trafficking case the Ontario Superior Court considered whether the police could enter, without a search warrant, the common elements of the condominium building in which the accused resided. 

The police investigation was focused on Yanni Papadolias, a suspected drug dealer. The police had reason to believe that illegal drugs were being stored somewhere in the condominium building that Mareth White, a colleague of Papadolias, resided in. The police entered White’s condominium building several times through an unlocked side door and, on one occasion, by following the mailman as he entered the building. On one visit, the police visually inspected White’s locker without actually entering into the locker. During one of these visits to the condominium, the police saw Papadolias leaving White's unit carrying a liquor box. It was subsequently determined that the liquor box contained illegal drugs. Based on this, the police then obtained a warrant to search White’s unit and subsequently found a large quantity of marijuana and cocaine in White’s unit.

Continue Reading

It’s move-in day to your first downtown condo. As an avid cyclist, you’re excited to be steps from Toronto’s bike lanes and paths. Your excitement quickly fades when you learn that all your condo’s bike racks are occupied and that your condo’s rules prohibit bikes in the elevators.

Determined to find a way to store your bike, you head into the garage and spot a few rusty, dust-collecting bikes that don’t appear to have been used in years.

Can your Condo Corporation dispose of property that appears to be abandoned?

Continue Reading

Property managers and condominium corporations should take noise complaints seriously or risk facing serious financial consequences. In a recent case, a condominium corporation that failed to enforce its rules prohibiting excessive noise was ordered to compensate an owner for the costs incurred to find alternative accommodation and was ordered to pay a significant costs award. The judge also criticized the property manager for not having taken the complaint seriously.

Continue Reading

Another follow-up to our previous posts on “Owners Requests for Records”.  As we previously posted, the Court agreed to vary its original order that the Corporation provide access to Mr.Lahrkamp to proxies and ballots by permitting the Corporation to redact references to owners and unit numbers. Mr. Lahrkamp appealed the variation and sought to reinstate the original order. 

The Superior Court of Justice Divisional Court determined that the Small Claims Court did have the jurisdiction to clarify and vary the original order. There was no basis for the appeal of the clarification order, as this was just a procedural matter  to clarify the original order, which was not appealed. 

This case once again confirms that an owner’s right to view records of the Corporation must be balanced with the privacy rights of other owners.

In a recent decision, the Superior Court of Justice was once again asked to determine whether a condominium owner should be forced to move out and sell her unit as a result of her violent and inappropriate conduct towards other owners.

The evidence presented in the case showed that Ms. Hayes had committed no less than five physical assaults on other owners or residents (at least one of which was caught by the security cameras). She also engaged in verbal abuse, threats and intimidation directed at board members, other owners and service providers to the condominium. Not surprisingly, this course of behaviour intimidated and instilled fear in a number of fellow members in this community. Ms. Hayes presented no evidence to deny or contradict this.

Continue Reading

The Condominium Act (the “Act”) has several provisions (sections 85, 134(5) and 135(3) which place the financial burden of obtaining compliance orders on those responsible for the non-compliance, thus relieving innocent owners of this financial burden. There are numerous reported cases where the costs of legal proceedings were enforced against individual non-compliant owners. In a recent case, Boily v. Carleton Condominium Corp. No. 145, the court was asked to decide whether innocent unit owners should have to bear the legal costs of proceedings in cases where there has been misconduct on the part of the board of directors.

 The Boily case involved a dispute as to whether proposed modifications to the condominium courtyard constituted a “substantial change” to the common elements as contemplated by section 97 of the Act. The proposed redesign of the courtyard included the removal of significant vegetation, the addition of parking spaces, changes to the design, shape, size and configuration of the courtyard and the replacement of the podium’s original red-brick with significantly different-looking limestone veneer cladding. 

Rod Escayola of our firm was retained by a group of owners who felt that the proposed work constituted a “substantial change” that required the approval of 66 2/3% of the owners. The board argued that the work constituted “maintenance” not requiring a vote by the owners.

 The board refused to hold a special meeting of owners as requested

The group of owners eventually requisitioned a special meeting of owners pursuant to section 46, requesting (amongst other things) the question of the new courtyard configuration be put to a vote requiring approval of 66 2/3% of the owners. 

The board refused to recognize the validity of the applicants’ requisition for a special meeting, alleging that they had not met the 15% threshold required to requisition such a meeting. In support of their refusal to call a special owners’ meeting, the board took the position that in the case of units that were jointly owned, the requisition needed to be signed by the majority of the joint owners of each unit. Moreover, the board refused to provide the group of owners with the list of registered owners, despite numerous requests. The owners had requested this list, on four occasions, in order to rectify any alleged deficiencies in their requisition.

The board then issued its own requisition for a special meeting of owners, which indicated that the board intended on submitting the question of the courtyard configuration to a simple majority vote at the meeting called by the board – all along refusing to allow the special meeting requisitioned by the other group of owners. The board also advised that the work would start the morning after the special meeting it had called. 

The group of owners sought an emergency injunction to prevent the board’s special meeting to proceed and to prevent the work on the courtyard from starting until they were allowed to hold the special meeting of owners they were requisitioning. The court granted the emergency injunction only hours before the board’s special meeting of the owners. 

Continue Reading

We were unable to respond to all of the on-line questions submitted at our Battle of the Proxies Seminar.  Here are those questions and our answers.

Q: What about proxies that come in after the mentioned deadline time? 

A: The Act is silent on this question and there are different schools of thought on this.  On the one hand, many corporations accept proxies up until the time of voting.  Other corporations refuse to accept proxies submitted after the deadline for registration.

Q: When speaking about arrears for 30 days or more. Does this include any amount, i.e. $30 outstanding?

A: The amount is not relevant.  Section 49 of the Act states that an owner is not entitled to vote if any contributions have been in arrears for 30 days or more at the date of the meeting.

Q: What if the proxy is another unit owner that is in arrears? Is the proxy still able to vote on behalf of the unit owner?

A: The entitlement to vote and to appoint a proxy is dependent on the owner’s right to vote.  As the proxyholder is the agent for the owner, it does not matter if the proxyholder is not entitled to vote on his/her own behalf.

Q:  If a proxy holder signs in and the proxy is signed, but no names (for election) ticked, then you can ask them to tick the director(s) they want to vote for? The owner has authorized them to vote on their behalf -- is this correct?

A:  Definitely not! The proxyholder cannot tick off the directors' names.  The owner authorizes the proxyholder to vote on the owner’s behalf for directors selected by the owner.

If you have wanted a detailed list cataloguing the differences between owning a home and owning a condominium you are in luck! Denise Lash recently presented to a large group at an HSBC event on the Differences Between Owning a House and Owning a Condominium.

Key topics of the presentation included:

• Title / Ownership
• Operation / Management
• Compliance with Laws and Regulations
• Pets
• Alterations
• Noise Issues
• Move In / Move Out
• Reserve Fund
• Insurance

The presentation also included the following review sheets and checklists:

•  Condominium Governing Documents Review Sheet
•  New Condominium - Legal Considerations Checklist 
•  Resale Condominium - Legal Considerations Checklist

Please visit the Condo Reporter Seminars page to review our up-and-coming events. Please click here to register for our next seminar titled Battle of the Proxies: Everything a Condominium Corporation Needs to Know About Proxies! The session will be held atHeenan Blaikie's Toronto office located at 333 Bay Street, 29th Floor. You may also participate via Live Stream by simply logging onto www.condoreporter.com. Prior registration is required to view the Live Stream.

Denise Lash was interviewed for an article in the Toronto Sun which discusses two cases in which  condo owners and residents faced legal trouble after avoiding complaints from their condominium boards.

In "Condo Battles can be Costly" Denise advises owners to not only comply with the rules and regulations for the building they reside in, but to also respond to compliance letters on a timely basis. She also warns owners that if the a case goes to court and a decision is made in the condominium corporation's favour, that,  just like in the two instances discussed in the article, most likely the owner will have to pay legal fees incurred by the corporation.

In the case of pet owners who have faced complaints about their pets as nuisances, Denise says that in order to avoid potential conflicts with their condo board and/or residents of the building, owners should be reviewing the condominium documentation before they purchase.

(Photo by Alex Consiglio for the Toronto Sun)

Condominium Corporations considering doing common element improvements to reduce energy consumption costs, should be interested in a new mortgage loan insurance product just launched by CMHC.  Click here for more information.

The Condominium Act provides that the affairs of the condominium corporation are to be managed by a board of directors elected by the owners. Should the owners become dissatisfied with board members or the way they manage the corporation’s assets, the Act provides a mechanism for owners to requisition a meeting of owners to remove one or more board members.

In addition, the owners (or the corporation itself) can apply to the courts for the appointment of an administrator to take over the administration of the condominium corporation.

Imagine for instance, a situation where a condominium corporation has accumulated extensive debts and becomes unable to meet its payment obligations for utilities and municipal taxes. Rapidly, annual general meetings become “chaotic with blame being heaped on others for the corporation’s problems” and election campaigns become personal and acrimonious. Various factions of owners attempt to have the board removed, while the board accuses former board members of causing “internal strife and in-fighting”. The level of hostilities between residents, owners and board members quickly escalates while the corporation remains on the "brink of financial collapse". In such circumstances, even the most well-intentioned boards can become dysfunctional and unable to effectively manage the corporation.

Continue Reading

The electric vehicle (“EV”) revolution has officially been launched and condominium developers have taken note.  Many developers have recognized the invasion of the EV and the impacts this may have on the marketability of a condominium.  As a result, some new condominiums are being built with a number of parking spaces that contain roughed-in EV outlets. 

New developments have the opportunity to sub-meter EV outlets and clearly set out the responsibilities for maintenance, repair and insurance in the corporation’s declaration.  On the contrary, existing condominiums have been created and declarations drafted without any contemplation of the EV. As a result, existing condominium corporations are in the difficult position of determining a number of issues, including the following:

• Will the EV outlets be located in individual parking spaces (which may be unitized or part of the common elements) or will there be shared charging stations in the common elements of the corporation?
• Will changes need to be made to the common elements of the corporation to accommodate the EV outlets and/or charging stations?
• How will the responsibility for installation, maintenance, repair and insurance will be allocated?
• Who will be responsible for the costs of electricity (especially if the condominium is bulk metered)? 

Continue Reading

To follow up on Barbara Holmes's latest blog entry, Denise Lash was recently interviewed by the Canadian Press on the recent decision by Heritage Minister James Moore's intention to back a private member's bill that would prohibit anyone from barring the display of the Maple Leaf flag.

Denise stressed that for condominiums owners it is important that if the bill is passed, that safety restrictions are discussed by condo boards:

“I’m thinking not just of ... flags displayed all over the building and how that would impact on someone wanting to purchase in the building, but also the liability issues with hanging flags and poles off balconies,” said Lash, who writes frequently on condo law and was host of MondoCondo TV.

“There are restrictions on putting flowers on your balconies or patio furniture and that’s done for the purposes of the aesthetics of the building, but also for liability issues with something falling off.”

The Canadian Press interview was picked up by a number of newspapers, but you can read the article online via the Hamilton Spectator.

Denise Lash has penned another article for Legal Eye, her regular column in Condominia magazine. “Good Neighbour Rules” discusses the importance for condominium corporations to set realistic rules and guidelines for outdoor spaces for when condo residents move their socializing to the grounds of their building:

Most types of these types of (outdoor) spaces, such as balconies and patios, are legally defined as exclusive-use common elements. This means that although these areas are only used by the unit owners ( and not other unit owners), it is still a common element and is governed by the rules of the condominium corporation.

You can read the article on Page 22 of the digital magazine.

A special thank you to Ronak Shah (student-at-law) for co-authoring this article.

The Ontario Human Rights Code (the “Code”) requires condominium corporations to provide an equal opportunity to access housing and its intended benefits without discrimination on any of the grounds protected by the Code, including disability. The obligation extends to condominium boards, management, staff, owners and residents.

Time after time, human rights commissions and tribunals across Canada have affirmed that condominiums have a general duty to accommodate disabled owners and residents to the point of undue hardship. Depending on the circumstances, appropriate measures to accommodate persons with disabilities may include providing wheelchair ramps and accessible parking on the property, installing wide lobby doors that open automatically, or adding Braille to elevator buttons.

Continue Reading

You wouldn't expect that the purchase of a $1.4 million luxury condo unit would end up in court over whether the purchase included ownership in the amenities.

But that is what happened when the condo owners of a high end condo project in Hawaii, learned that what they thought they had purchased was not in fact correct.  Those owners are now in court fighting over the amenities and other issues relating to the Ko Olina condominium project in Hawaii. 

Continue Reading

The March 2011 issue of Condo Business Magazine is focused on bylaws and the legalities of condominium living, and the article written by Barbara Homes and Denise Lash focuses on what condominium corporations can do to prevent or stop the operation of illegal and undesirable activities in a building. Here is a snippet:

“While the operation of massage parlours is not an illegal activity per se, operating such a business from a residential unit in most cases is a violation of the City’s zoning bylaws. Most of us would not be pleased to find that our neighbour across the hall is operating a massage parlour or a brothel from the unit.”

You can read the rest of the article (starting from Page 8) in the digital version of the magazine.

Denise Lash will be providing a regular column, "Legal Eye" for the new online magazine, Condominia, which recently hit virtual newsstands.

Published 5 times a year, Denise kicked off the premiere issue with an article about thinking green when purchasing a condo. You can read the article here. Enjoy!

There have been many studies over the past few years about the potential impact cell phone towers erected near residences may have on humans. Some scientists have reported that long term exposure to Radio Frequency (RF) energy used to communicate from cell phones to towers can lead to changes in brain activity, brain reaction times and the time it takes to fall asleep.  On the other hand, Health Canada has reported that the general consensus in the scientific community is that the RF energy is too low to cause health effects in humans and that contrary scientific findings have not yet been confirmed.  Nevertheless, Health Canada has established guidelines for safe human exposure to RF energy in their Safety Code 6.  Industry Canada, the federal regulator responsible for the approval of RF equipment, has adopted Health Canada’s guidelines as their regulatory exposure standard. Antenna proponents are required to perform an assessment of RF exposure on proposed antenna systems before their installation in order to ensure compliance with these policies.

Continue Reading

Many condominium corporations have either passed new by-laws or may be in the process of amending their by-laws and will have faced the challenge of getting the required number of unit votes to confirm those by-laws.

Techniques have been developed so that if it appears that the by-law will not pass due to either lack of attendance or support, the meeting can be adjourned before the vote takes place, to a later date and the proxies can be collected and used for the continued meeting.

Continue Reading

Owners who take part in signing a requisition to remove a director should be carefully reviewing what they sign or they may be finding themselves involved in a lawsuit where they could be held personally liable.

This was the case in a recent Small Claims Court decision, Swan v. Goan, involving a requisition to remove a director and the commencement of five separate claims by the President of the board against two other board members, the condominium corporation and the property manager.

Continue Reading

In this episode, Denise Lash shares her thoughts on what potential buyers should consider before purchasing a condominium. Enjoy!

I often hear  complaints from board members and property managers about the challenges they have dealing with condo residents who disregard the rules in their communities.

Often times the resident themselves, are unaware that there are rules and regulations and are unfamiliar with what the condo lifestyle is all about.

Many problems could be solved with a little knowledge ahead of time. Here are ten tips that may assist condo purchasers in understanding what it is like to live in a condominium community.

1. Condominiums are communities-living in a condominium means living with others. A sense of security, social gatherings, “community spirit” and collective decision making.  But remember, people are people, different habits, different lifestyle and sometimes it may have an impact on your lifestyle. 
2. Condominiums are Corporations-though they are slightly different then a business corporation, this community is run by a board of directors and you as an owner, act in your capacity similar to that of a shareholder.  That includes the right to vote- but only in certain circumstances.
3. Condominiums have rules-they are there for a reason.  They must be enforced and there are penalties for not complying.  Remember the rules- pets, alterations, noise and parking.
4. Condominiums require maintenance and repairs-buildings require upkeep and over time there is wear and tear.  The result is that those costs are shared by the whole community. If the budget hasn’t included those costs and if those costs have not been anticipated and planned for, owners may be expected to pay those costs as special assessments.
5. Expenses fluctuate and services may change-the recent gas prices were probably not planned for in most budgets.  Sometimes owners decide to obtain additional services. Again, that may mean that owners may have to pay additional costs.
6. Corporations are managed.  Most of the time by a property management company.  A property manager is not a superintendent.  Managers are specially trained and skilled at running condominium corporations.
7. Neighbours come and go.  Some are good and some are difficult.  It could mean the difference between staying in your condo unit or selling and moving on.  Same holds true for homes.  So, best to try to work with property management and resolve these problems,
8. Condominiums plan for the future- money is collected monthly and a portion is used to fund the Reserve Fund account used for future repairs- this avoids those special assessments for major repairs down the road.
9. Parking and lockers have separate rules and restrictions-learn what they are- they may prevent you from selling or leasing to anyone outside of your condominium
10. Condominiums have insurance-the insurance covers some items but not others. Owners need to obtain their own insurance for example if your bathtub overflows and causes damage, you want to make sure that you have the appropriate insurance coverage.

Living in a condominium is a lifestyle change.  Just be prepared.