Does a Proxy Instrument Have to be in a Particular Form?

A proxy instrument does not have to be in a particular form. Any form is acceptable, provided:
  • the proxy instrument is “in writing, under the hand of the appointer or the appointer’s attorney” (in accordance with Section 52 (4) of the Condominium Act, 1998 (“the Act”);
  • the proxy instrument is only for a particular meeting (including any adjournment of that meeting);
  • the proxy instrument clearly expresses the appointer’s desire to have his or her vote exercised by the appointed proxy; and
  • the appointer has the right to vote at the meeting.
[In relation to the election or removal of Directors, the proxy instrument must also state the name(s) of the Director(s) for and against whom the proxy is to vote – in accordance with Section 52 (5) of the Act.]
There is no requirement that the proxy instrument be in the prescribed form (contained in the regulations under the Act). The prescribed form is only one option.
There is also no requirement that the proxy instrument be in the form, if any, attached (by the corporation) to the Notice of Meeting. Again that is only one option.
As long as the above list of requirements is met, any form will do.


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Limitation Periods on Claims Involving Land

The Real Property Limitations Act (the “RPLA”) governs the limitation periods applicable to claims against real property. Generally speaking, this Act imposes a 10 year limitation period on claims against real property. In the condominium context, this 10 year limitation period is typically applicable to actions commenced to enforce condominium liens. [Condominiums effectively have 10 years from the date of default in which to enforce the lien (by way of Court action).]

While the application of the RPLA is relatively straightforward with respect to the enforcement of certain registered interests (such as condominium liens), it is not as straightforward when dealing with liens arising under certain agreements registered on title, for default in payments owing under such agreements (which liens are not specifically registered on title to the affected property).

In the recent case of Toronto Standard Condominium Corporation No. 1487 v. Market Lofts Inc., (“TSCC No. 1487 v. Market Lofts”), the Court found that the 10 year limitation period prescribed by the RPLA is applicable to actions by parties to a shared facilities agreement for any default in payment under that agreement. This is so, notwithstanding the fact that no separate lien is registered for such default (the lien simply arises and exists by virtue of the agreement on title). In the Market Lofts case, the shared facilities agreement specifically contemplated an unregistered lien arising in the event of default in payment of any amounts owing under the agreement. The agreement also confirmed that such a lien was enforceable in the same manner as a mortgage in default.

The provisions of the subject agreement in the Market Lofts case are similar to provisions that we typically see in most shared facilities agreements, or co-tenancy agreements. Accordingly, this case indicates that, generally speaking, enforcement of unregistered liens arising under such agreements may very well be subject to the 10 year limitation period prescribed by the RPLA.

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Do You Have Copies of the Survey Plans for Your Condominium?

The survey plans for a condominium contain a great deal of information. Among other things,

  • they show the overall boundaries of the condominium property;
  • they show the unit boundaries (typically including a helpful cross-section);
  • they show the exclusive-use areas; and
  • they also show portions of the property that are subject to easements or rights enjoyed by other lands.

So, the survey plans can be extremely helpful to the Board and/or the Manager.

[As a general rule, we like to have copies of the survey plans for all of our condominium clients.]

The survey plans can sometimes be obtained on-line, through the Teraview Land Registration System. Otherwise, they can be obtained (for about $5 a sheet) from the local Land Titles Office.

My recommendation to every Board and Manager is as follows: if you don’t have them, I recommend that you consider obtaining a full set of the survey plans for your condominium.

Note that the as-built architectural, structural, mechanical and/or electrical drawings are completely separate and distinct from the survey plans. The as-built drawings are also very important, but they contain very different information – about the physical construction of the condominium building(s). The survey plans contain information about legal boundaries and interests in land.

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What’s a New Condo Director to Do? Five First Steps

Congratulations! You’ve been elected to your condo’s board. As a new condo board director you will now need to take the time to understand what your and the board’s responsibilities are, and how they are met. This information is vital, because condominium directors have legal obligations to the condominium corporation (including present and future owners). Getting familiar with all of this is a director’s first duty, and is significantly helped by taking an introductory course for condominium directors (which is always recommended). But, here are some other steps that may be worth taking in each case:

1. Review All Constituent Documents

Becoming familiar with the Condominium Act and the corporation’s Declaration, By-laws, Rules and Survey Plans is a top priority. A condominium director would not be expected to know and understand all of the intricacies of the Condominium Act, but in most cases a director would be expected to have general familiarity with the Act and would also be expected to know the condominium’s specific governing documents (ie. the Declaration, By-laws, Rules and Survey Plans).

2. Review the Condo’s Directors and Officers Insurance Coverage

This is vitally important, because directors do get sued from time to time. Understanding the corporation’s D & O insurance protection may put your mind at ease, and make you less likely to balk when it comes time to making hard decisions that could raise the ire of other unit owners, or perhaps service providers. Some questions that you will want to ask yourself when reading this insurance policy include: Is the coverage amount enough? (Two million dollars coverage is now considered the very minimum amount that should be in place. But five or even ten million dollars coverage is now very common. This is something to be reviewed with the corporation’s insurance broker.) Are the terms of coverage sufficient, or could they be broadened, or gaps in coverage filled, with another policy? Is there a deductible? And, most importantly, read and become keenly aware of the policy’s requirements to provide notice in the event of a potential claim, because failing to meet those requirements could see your insurer decline coverage. [Again, all of these issues can be reviewed with the corporation’s insurance broker.]

Somewhat related to this topic is that you should also make sure that the corporation is required to indemnify you for any acts or omissions that result in legal action – check the by-laws for this protection.

3. Review Past Minutes of Board and Owners’ Meetings

Review the minutes for the past two years (or further back, as appropriate in the given circumstances), in order to understand any current issues requiring the Board’s attention.

4. Review the Condo Manager’s Contract

Most condos contract with managers to handle the “day to day” financial and maintenance issues of the condo, as well as to ensure that the board is following the correct procedures when it acts. Board agendas, meeting minutes and annual budgets are usually generated by the manager for the board to rely on, and will follow-up with the board on the status of action items. A review of the manager’s contract will detail the manager’s duties, and allow you to see if the manager is fulfilling its duties, and conversely, if the board is fulfilling those duties left to it. You will also want to see if the manager’s contract has an indemnification provision in the manager’s and/or the condo’s favour in order to more fully understand the board’s potential liability should a claim be made against the manager for acts or omissions that are linked to the manager’s contractual performance.

5. Review Current Financial Documents

Many of these documents you will have seen, as they were already available to you as a unit owner and formed part of the information discussed at Annual General Meetings. These are: the annual budget, the current Reserve Fund Study (and related plan to finance it) and current Status Certificates. But, as a director, you will now want to understand what they are and what they mean in more detail. Again, what is required in each is set out in the Act and its regulations, so you should start there. When you get to the documents themselves, more context may be needed to appreciate specific line items or statements. This is where dialoging with your condo manager and the more experienced board members will come in handy.

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