Condo Law Digest – October 2017

Shah v. Southdown Towns Ltd., 2017 ONSC 5391
Decision Date: Sept 11, 2017
http://canlii.ca/t/h5w8p

In the fall of 2016 each of the five applicants entered into a Purchase and Sale Agreement to buy a pre-construction condominium unit and a parking spot from Southdown Towns. (Mr. Shah was the first of the five applicants to enter into the Agreement, and he dealt with Southdown on behalf of the others.) Each purchaser paid a deposit and agreed to provide proof of mortgage approval within 10 days of the acceptance of the Agreement. If this condition was not met, Southdown Towns had the option to terminate the Agreement. In Feb 2017 Southdown sent Mr. Shah an email requesting confirmation of mortgage approval. A month later counsel for Southdown sent a letter to each of the applicants requesting the mortgage approval by March 30, and warning them that Southdown Towns would exercise its rights to terminate the Agreement if they did not comply.

Mr. Shah claims that he snail-mailed the documents on March 28, but provided nothing to support this claim. On March 31 he dropped off the documents at the sales center. These documents proved to be inadequate. On the same day Southdown Towns wrote to each purchaser, terminating the Purchase and Sale Agreement. The applicants finally provided valid mortgage approvals in mid-April. In this action, the Applicants ask the court for “relief from forfeiture;” that is, for the Purchase and Sale Agreement to go ahead. They estimate that each of them will lose $150,000 to $200,000 in potential value (the increase in value of the units between time of purchase and move-in date) if relief is not granted.

Justice Emory declined to grant the requested relief, saying that the Applicants had not exercised reasonable diligence to comply with the Agreement

Comment: The Applicants will receive their deposits back.

Patel v. Davis, 2017 ONSC 5496
Decision Date: Sept 22, 2017
http://canlii.ca/t/h694x

In June 2017 Mr. Patel entered into a valid and enforceable agreement to purchase a condominium unit from Mr. Davis, with a closing date of August 31, 2017. Sometime in July Mr. Davis seems to have had a change of heart and refused to complete the sale. In this action, Mr. Patel seeks an order that Mr. Davis deliver clear title to the property.

Justice Peterson granted the application, stating that the condominium is sufficiently unique (large footprint, two bedrooms, overlooking a park and with a wheelchair-accessible bathroom), that another comparable property would not be readily available.

Comment: Mr. Davis was not represented by counsel, did not file a defense, and did not appear in Court.

Zordel v. MTCC No. 949, 2017 ONSC 5544
Decision Date: Sept 19, 2017
http://canlii.ca/t/h67pp

The applicants are owners of units in MTCC No. 949. In June 2016 the Corporation switched its cable TV and internet provider from Rogers to a new service provider, Frontline. As previously, the costs for these services are charged as a common expense to unit owners. The applicants 1) challenge the jurisdiction of MTCC No. 949 to enter into this agreement. 2) Assert that MTCC No. 949 should have sought the approval of 2/3s of unit owners before making the switch. 3) Seek an order requiring MTCC No. 949 to allow them to opt out of the service. 4) Submit that MTCC No. 949 has acted oppressively towards them. 5) Seek clarification from court as to owner expectations when meetings are requested.

Justice Cavanagh dismissed the application: 1) MTCC No. 949 does have jurisdiction, according to Subsections 17(1) and (2) of the Condominium Act, its own by-laws, and the decision in Mancuso v. York Condominium Corp. No. 216. 2) MTCC No. 949 did not require approval of 2/3s of unit owners as the change in service is not “substantial.” 3) As MTCC had jurisdiction to make the bulk services agreement, unit owners do not have the right to opt-out of it. 4) The conduct of MTCC No. 949 towards the applicants does not meet the threshold of oppression. 5) This case is not a proper one to clarify the issues around meeting requisitions by owners.

I missed this decision when it was released in July:

Carleton Condominium Corporation No. 282 v Yahoo! Inc., 2017 ONSC 4385
Decision Date: July 18, 2017
http://canlii.ca/t/h4w8v

In November 2016 an individual with the alias “Ian Fleming” sent emails to the owners and occupants of CCC No. 282, accusing the Board of unethical behaviour (accepting kickbacks) and harassment of staff. In this decision Justice Ryan Bell granted a “Norwich order” to CCC No. 282 requiring Yahoo Canada to disclose information necessary to obtain the identity of the author of these emails.

About the image: State Archives of North Carolina – https://www.flickr.com/photos/north-carolina-state-archives/16052444819/, No restrictions, Link