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?
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
