James Katz joins Condominium Litigation Team

Nelligan O’Brien Payne’s Condominium Law Group is thrilled to welcome the newest member of our condominium litigation team: James Katz.

As a member of our condominium litigation team, James’ practice focuses on litigation in the condominium context, such as: building deficiency actions, applications for compliance with the Condominium Act, 1998, or the Corporation’s Declaration, By-Laws or Rules, first year budget shortfalls, private arbitrations related to breaches, and any other dispute which may, and can, arise in a condominium setting.

James is fluently bilingual and looks forward to assisting the condominium community in both official languages.

Click here to view James’ firm profile, and click here to view other members of our Condominium Law Group and condominium litigation team.

The Role of the Chair

A recent Court decision has confirmed the important role played by the Chair at a meeting of condominium owners.

In the case of Davis v. Peel Condominium Corporation No. 22 (June 7, 2013), a meeting of owners had been held to consider removal of the Board.  At the meeting, the Chair was required to consider whether or not certain proxy votes should be excluded pursuant to Section 49 of the Condominium Act on the grounds that the owners (who signed the proxies) were at least thirty days in arrears (and therefore were not entitled to vote at the meeting).

The Chair determined that the owners in question were not in arrears, and therefore accepted the proxy votes. The removal vote was held, and the Board was removed. One of the owners then applied to Court for an order declaring the vote invalid on the grounds that the Chair had improperly accepted certain proxy votes.

The Court said that the Chair had acted properly, and upheld the vote. The key aspects of the Court’s decision were as follows:

  • The Court confirmed that it is the role of the Chair, at least at first instance, to determine an owner’s right to vote.
  • The Court found that the Chair might have erred in relation to three of the proxy votes. In other words, the Court found that perhaps three proxy votes should have been excluded, but since the three votes did not in any event influence the result, the Court declined to overturn the vote.

Green Light Given for Mandatory Qualifications for Condo Managers

For those following the revisions to the Condominium Act: Tracy MacCharles, the Minister responsible for Consumer Services, announced last Thursday that the Ontario government has given the “green light” to bring in mandatory qualifications for condominium managers.

A group representing condominium owners, residents and industry experts will examine what these qualifications for condominium managers should be and is expected to report back to the Ministry in the summer of 2014. This same group will also determine how a self-funded, independent regulatory authority may be set up to oversee the qualifications.

The Ministry is seeking input from the public. You may share your thoughts on this issue with the Ministry by e-mail at oncondo@ontario.ca, mail or through Twitter (@ontarioconsumer/ #oncondo), or Facebook (facebook.com/ontarioconsumer).

Use of Reserve Fund Monies

Section 93(2) of the Condominium Act, 1998 states that a condominium corporation’s reserve fund can only be used for the purpose of major repair and replacement of the common elements and assets of the corporation. In light of this wording, we are often asked whether this means that only the strict repair costs (for example, the costs of contractors and engineers) can be funded from the reserve fund. We are also asked whether this means that only repairs and replacements that are listed in the reserve fund study can be funded by the reserve fund.

In our view, the wording of section 93(2) allows for the use of reserve fund monies for all costs related to major repairs and replacements. Such costs may include a variety of soft costs, which are incurred for the purpose of proceeding with a major repair and replacement.

In addition, reserve fund monies are not restricted to funding only those major repairs or replacements which are listed in the reserve fund study. In appropriate circumstances, reserve fund monies can properly be used to fund unexpected or unplanned expenses.

One note of caution: for any unplanned expenditure (not predicted by the reserve fund plan), remember to consider whether or not the unexpected depletion of the reserve fund could result in an increase in reserve fund contributions in the future (which might need to be disclosed in paragraph 12 of the status certificates).