New Laws to Build Healthy and Sustainable Condo Communities
July 25, 2017 8:37 A.M.
Ontario is moving forward to better protect condo owners and residents by increasing consumer protections in Ontario’s condo communities.
Today the Minister of Government and Consumer Services, Tracy MacCharles, announced new protections for condo communities taking effect this fall. Changes will include:
- Regular mandatory updates about the condo corporation to help improve communication between boards and owners
- Improving condo corporation governance and addressing conflicts of interest by introducing new disclosure requirements for directors, including whether they are not owners or occupiers of units in the condo or if they have interests in contracts involving the corporation
- Mandatory training for condo directors to improve how condos are managed and operated
- Clearer rules to make it easier for condo owners to access records of their condo corporation
- New notices, quorum and voting rules to make it easier for owners to participate in owners’ meetings
- Mandatory education requirements for condo managers applying for a general licence.
The government will also designate two new administrative authorities:
- The Condominium Authority of Ontario (CAO), when designated on September 1, 2017 will provide education and promote awareness of condo owner rights and responsibilities, as well as provide important information for condo corporations. On November 1, 2017 it will also be responsible for managing the Condominium Authority Tribunal which will resolve disputes about access to condo records. Going forward, Ontario will consult with the public to identify other disputes the Tribunal could resolve.
- The Condominium Management Regulatory Authority of Ontario (CMRAO), when designated on November 1, 2017 will regulate and license condo managers and providers.
Protecting condo residents in Ontario is part of our plan to create jobs, grow our economy and help people in their everyday lives.
” Addressing the growing needs of condo communities across the province and supporting long-term sustainability of condo living is key to our government’s mandate. Creating new consumer protections will help to build more sustainable condo communities so residents moving into condos today and in the future will be able to look forward to healthy condo communities and peace of mind in the place they call home.”
– Tracy MacCharles
Minister of Government and Consumer Services
- There are currently 1.6 million people living in condos in Ontario and more than 50 per cent of new homes being built in the province are condominiums.
- There are more than 750,000 condo units in Ontario, up from 270,000 units in 2001.
- The CAO and CMRAO were created as part of the implementation of the Protecting Condominium Owners Act that was passed in 2015
- The government received about 200 recommendations for condominium law reforms through its public consultation process.
What happens if a real estate agreement of purchase and sale does not cover an event that neither the buyer or the seller contemplated when it was signed?
How does a court deal with equally sound claims by both sides to the contract?
That was the situation an Alberta court recently faced: Mr and Mrs Smith (names changed) owned a condo in Fort McMurray; they sold it to Mr Jones.
Before the transaction closed, the condominium corporation levied a $21,000 special assessment against each unit for necessary capital expenditures including fire safety upgrades, sewer line replacement, boiler repairs and asbestos abatement. The assessment was payable in six installments of $3,500 twice a year, from September 2015 to September 2018.
The agreement of purchase and sale provided that the sellers were to make all the special assessment payments, including those that fell due after closing.
The closing took place on November 27, 2015, at which time the entire $21,000 was paid to the condo corporation.
Then two things happened. The entire condominium complex burned to the ground in the 2016 Fort McMurray wildfire that destroyed 2,400 homes and building and displaced thousands of people.
In the wake of the fire, the board of the condominium corporation passed a resolution to return unused funds for the remedial work on the building that no longer existed. The prepaid assessments for the unit that the Smiths sold totalled $14,000 – but both the buyer and the sellers wanted it.
Of course the contract did not contemplate the destruction of the building and it was up to the Alberta court to decide who should get the money.
It was up to the court to write an implied term into the agreement and decide what the parties would have agreed upon had they been asked how to deal with the unused funds if the building burned to the ground before the assessments had been used up.
Scott Schlosser, the presiding judicial official (known as a Master) heard the presentations.
“Both sides have a good argument,” he wrote. “The Smiths no longer have any interest in the condominium. The question is how to deal with these events that neither side foresaw.”
Schlosser dug into the legal history books for an 1899 British case where the court ruled that it could write implied terms into a contract in order to give the contract “business efficiency”.
In 2000, the Supreme Court of Canada rules that implied terms may be written into a contract by the courts, based on custom or usage, or based on the presumed intentions of the parties.
Over the years, the courts have invented the fiction of the “officious bystander” or the “reasonable man who rides the Clapham omnibus” or, in Canada, the “reasonable member of the public.”
Master Schlosser wondered what would have happened “if an officious bystander were to have asked the parties (then not knowing what side they were on): ‘What should happen if the condominium burns down and the special assessment were returned?’ – something that was probably the furthest thing from their minds.”
It was not an easy case to decide. “It is my view,” Schlosser wrote in his decision this past April, “that they would have agreed that the unnecessary funds should be returned to the sellers”. That, he reasoned, was implicit in the bargain, or should be implied into it.
The Smiths got their money back.
By Toronto real estate lawyer Bob Aaron. He can be reached at firstname.lastname@example.org or on his website at aaron.ca.
A new report reveals Canadian sentiment about homebuying in Canada – including just how impactful the stress test might be.
In its latest report, entitled Consumers’ Perspectives on Homebuying in Canada, Mortgage Professionals Canada aimed to simulate what percentage of prospective homebuyers would be impacted by the stress test policy that requires high ratio buyers to qualify at the posted rate of 4.64%.
According to the simulation – which included buyers with less than 20% down payment who could afford a market interest rate of 2.6% — 20% would fail the stress test and therefore would not qualify for mortgage financing.
Of those who would fail, 45% said they would increase their down payment amount; 45% said they would buy a less expensive home; 20% would look outside their original targeted region; 39% would delay their purchase; 5% would do something else; and 7% did not know what to do.
“The stress test would mean that a considerable number of potential homebuyers would become unable to borrow as much as they need to complete their desired purchase (even though they can afford the actual costs associated with that purchase),” MPC said in the report. “There is uncertainty about how many of these affected people would be able to make changes in order to make a purchase (buying a less costly property, increasing their down payment, or finding a borrowing alternative that does not require mortgage insurance) and how many would have to delay buying (and for how long).”
Paul Taylor, president and CEO of MPC, said the number of Canadians impacted by the stress test was unsurprising.
MPC did find the stress test is forcing some homebuyers to use pricier uninsured lending options rather than decrease their debt load.
“We agree with a mortgage stress test but it should be reflective of more realistic future interest rates so Canadians can continue to have access to affordable homeownership,” Taylor said. “Modifying the criterial has a more realistic chance of improving homeownership for consumers.”
This article is reproduced with kind permission from REP magazine which I highly recommend.