Tuesday, November 28, 2017

Court refuses to Amend Declaration of Condo Corporation

Do you have a unit at Toronto Standard Condo Corp 1556 Also Known As Skymark Center at Avondale - West Structure. Toronto Standard Condominium Corporation #1556. Address 78 Harrison Garden Boulevard?

Do you have a unit at Toronto Standard Condo Corporation 1600 Also known as  SKYMARK AT AVONDALE II, 80 HARRISON GARDEN BLVD, Toronto, Ontario?

Should you have known about this before your purchase? 

In a recent case, (TSCC No. 1556 and No. 1600 v. Owners of TSCC No. 1556, et al), the Ontario Superior Court of Justice refused to grant a court order to amend the declarations of two corporations to eliminate provisions in their declarations which specifically permitted transient, short-term rentals in the condominiums.
The two corporations were developed by the same builder and contained identical provisions in their declarations dealing with short-term rentals. The declarations specifically stated that transient short-term rentals were permitted in accordance with the applicable zoning by-laws. In addition, there were also numerous provisions in the declarations that any restrictions in the declarations were not to be construed to prohibit or restrict short-term rentals.
The condominium corporations took the position that the short-term rental provisions:
§ were inconsistent with the Condominium Act, 1998 (the “Act”) because they impermissibly granted rights relating to occupancy and use (when the Act only allows declarations to contain conditions or restrictions with respect to occupancy and use), and because they interfered with the ability of the board of directors to make rules;
§ were inconsistent with the City zoning by-laws; and
§ were inconsistent with a restrictive covenant registered against the condominium properties which prohibited the construction of commercial space.
All three of these arguments failed on the following basis:
§ The declarations did not grant any rights as the right to lease property is a right of ownership. The declarations merely confirmed that any provisions in the declarations which restricted uses, did not restrict the right to lease, and thus there was no inconsistency with the Act.
§ As section 58(2) of the Act specifically states that rules must be consistent with the declaration, the condominium boards clearly could not make any rules prohibiting or restricting short-term rentals, as this would be inconsistent with the declarations.
§ The wording in the declarations specifically stated that short-term rentals must be in compliance with the applicable City zoning by-laws in effect from time to time.
§ While short-term rentals of residential units may be a commercial use, this was not contrary to the restrictive covenant, as there was no construction of commercial space in the condominiums and the restrictive covenant did not prohibit leasing residential units for a commercial purpose.
§ The disclosure documents delivered to purchasers when they entered into their agreements of purchase and sale specifically stated that short-term rentals were permitted and some purchasers relied on the ability to lease their unit on a short-term basis when making their purchase decision.
As the court application failed, the only avenue to amend the declarations would be to obtain the written consent of the owners of 80% of the units in accordance with section 107 of the Act. Eighty per cent consent is a high threshold and often difficult to obtain. In this case, as the disclosure documents and the declarations clearly stated that there were no restrictions on the leasing of units, many of the owners may have relied on this when making their purchase decision, and thus would not consent to amending the declarations to prohibit or restrict short-term rentals. http://www.lashcondolaw.com/court-refuses-to-amend-condo-declaration-to-ban-short-term-rentals/ 

So these BUYERS who acted in good faith to purchase a suite for occupancy or investment;

a) Did they take the condo status documents to a lawyer to have it things explained?
     ....... 80 % do not  assuming that all condo documents are the same
b) Are you content to remain in your purchase?
c) Has your investment been soured by this experience?

Add your comments below 

Friday, November 3, 2017

A Guide to the New Condominium Act Forms

Nov 1,  2017
As of yesterday, many changes to the Condominium Act came into effect that affect the day-to-day responsibilities of condo corporations.
Some of the changes require corporations to use Ministry forms where they weren’t previously required.
The Ministry released the new forms corporations will have to use for: proxies, to provide notice of meeting, and the three types of information certificates, among others. Here is a list of the new forms:

Information Certificates
This “mini status certificate” provides owners with updates on finances, insurance, reserve fund, board, and other matters throughout the year.
Tip: This must be sent out twice per year – within 60 days after the last day of the first and third fiscal quarter.
This certificate is triggered on certain events, such as a change in the directors, or change of the corporation’s address for service.
Tip: There are different time periods for sending out the Information Certificate Update depending on the type of triggering event. For example, if the board loses quorum, this must be sent out within 5 days of losing quorum, whereas a corporation has 30 days to send out the notice for a mere change in the number of directors.
This notice contains the most recent Periodic Information Certificate and Information Certificate Update.
A corporation must send this notice to owners if it decides to post any of the information certificates online (such as through property management’s web portal)

This form must be used by owners or mortgagees voting by proxy at a meeting of owners.
Tip: Proxy forms can be used at an adjournment of a meeting of owners. If, for example, there weren’t sufficient owners present at an AGM to pass a by-law, proxies submitted for the purpose of passing a by-law at that AGM can be used at a subsequent meeting of owners.
This notice is meant to give owners an advance notice of the purpose of the meeting of owners.
Tip: This must be sent out at least 35 days before the meeting date.
This form is required for sending owners notice of an upcoming meeting of owners.
Tip: This must be sent out 15-20 days before the meeting date.
Record Requests
This form must be used when an owner, mortgagee or purchaser requests records.
This form must be used by the board of directors when responding to a record request from an owner, mortgagee or purchaser.
Tip: The board must respond to the request within 30 days.
This is an agreement between the requester and the corporation that allows the requester to waive certain rights with respect to the corporation’s response to the record request.

Other Forms for Owners
1. Notice of Meeting of Owners under s.34(5) of the                                   Condominium Act
This must be used by owners who wish to call a meeting to fill vacancies on the board if the board loses quorum and the remaining directors do not call within 15 days of losing quorum, or if there are no directors in office.
This form must be used by owners if they wish to submit material to the board to be included in the upcoming Notice of Meeting of Owners
Tip: Although owners can request material to be included in the notice of meeting, the board is not obligated to include this material unless the submission is made on behalf of owners of 15% of the units (or more), and the submission would not add anything that is contrary to the Condominium Act or the regulations.

C/O Lash Condo Law