Condo Law Digest – September 2019

Metropolitan Toronto Condominium Corporation No. 590 v. Registered Owners, 2019 ONSC 4484
Decision Date: July 25, 2019

MTCC No. 590 is a 20-storey condominium in downtown Toronto. The units on the top 4 floors have wood-burning fireplaces, and each fireplace has a chimney flue that eventually vents onto the roof. From 2013 to 2017 the Corporation obtained several engineering reports advising that the fireplaces were no longer safe to use. The fireplaces and chimney flues must be replaced, removed or decommissioned. The Board has not yet chosen a solution because of uncertainty over who is financially responsible.

MTCC No. 590 brought this action in December 2017, seeking to amend its Declaration to make the unit owners on the top 4 floors responsible for the cost of maintaining both their own fireplaces and the chimney flues. Owners of 9 of the fireplace units brought their own application, asking for a declaration that the chimney flues form part of the common elements of the building, and that MTCC No. 590 should bear the cost of repairing or replacing the chimney flues.

Justice Sanfilippo granted an Order to amend the Declaration and specify the chimney flues as exclusive use common elements, based on their nature and historic use. He reasoned that they are more like private balconies than like (for example) the vents and shafts forming part of the building’s HVAC system.

Comment: Each side in this dispute filed letters of opinion from condominium lawyers as part of the factual narrative, seeking to explain why they considered their applications to be necessary. Justice Sanfilippo found these letters inadmissible and disregarded them.

York Condominium No. 187 v. Sandhu, 2019 ONSC 4779
Decision Date: August 14, 2019

YCC No. 187 seeks a summary judgement against condominium unit owner Ms. Sandhu. Ms. Sandu had rented her unit to an individual who was in “constant conflict” with building management, sued the corporation for five million dollars, and when the claim failed, appealed the decision. The cost of these unsuccessful actions (around $86,000) were added to the common expenses of Ms. Sandu’s unit. When she did not pay, the corporation placed a lien on her unit. In this action YCC No. 187 has asked to be granted vacant possession of Ms. Sandu’s unit in order to sell the unit and recover the monies owning to them.

In what was clearly a difficult decision, Justice Bawden has ruled in favour of the corporation. (That is to say, an emotionally difficult rather than a legally difficult decision, as the Condominium Act is clear that unit owners are responsible for the financial consequences of their tenants’ actions.)

Comment: This is a very unfortunate case and a good illustration of the importance of seeking (and then following) legal advice. To his credit, counsel for the corporation advised Ms. Sandu early in the process of the danger that she would be ultimately responsible for the costs of her tenant’s legal actions.

About the image: [Apartment in Denmark by Alla Hetman, Unsplash]