Shortcomings of the Amendments to the Condominium Act, SO 1998 in the Protection of Condominium Owners in Ontario Against Positive Covenants

  • November 07, 2022

by Vironika Niharosev, Osgoode Hall Law School

Vironika is completing her last year at Osgoode Hall Law School. Prior to law school, she completed her undergraduate degree at the University of Toronto, earning a Specialist in Environmental Geoscience. She worked in environmental consulting and assisted multi-residential and commercial clients manage hazardous materials, such as asbestos, mould and lead on-site. Her areas of interest in law include construction lien disputes, contract review and litigation. During her 2L summer she worked at RAR Litigation Lawyers, as a summer student in the Construction Litigation department. She will be returning to RAR to complete her Articles."



INTRODUCTION

The average price of a condominium in the Greater Toronto Area (GTA) was three-quarters of a million dollars in 2021.1 In contrast, outside of the city centre, and near the northwest end, you can pay a third of the cost for an 800 sq. ft. unit at 4745 Jane Street. 2 Although affordable alternatives are available, the cheaper unit you purchase is more likely to be overrun with bugs, have mould-disintegrated drywall, or even loose concrete balconies. Therefore, even though you have purchased the dilapidated unit at a comparatively reduced initial price, you may be forced to pay additional fees for repairs and maintenance costs to the condominium under Ontario’s Condominium Act (‘Act’).3 In this paper, I will argue that changes need to be made to the Act to support the goal of condominium owner protection. Specifically, amendments to the following sections should be made: director disqualifications (§ 29(2)(e)), re-defining what constitutes a "major repair" (§ 93 (2.1)), and decreasing the monetary threshold for modifications without notice (§ 97 (5)(c)(i)). Additionally, I will argue that the Act should impose a positive obligation upon condominium owners to attend a mandatory introductory training course on their rights and obligations in condominium ownership. These measures will strengthen director qualifications, increase the transparency of funding allocation and improve condominium owners’ knowledge of their rights, and as a result, further protect condominium owners from capricious monthly condo fees and unforeseen special assessment costs.

A positive covenant is a promise to perform a particular act with respect to the parcel of land, such as an obligation to pay monthly condominium fees.4 Under common law, absent a contractual agreement between parties, the burden of positive covenants does not run with the land.5 The agreement is not enforceable on subsequent owners upon the transference of title by the original contracting parties to the agreement.6 However, the Act creates a statutory exception to the aforementioned common law rule concerning positive covenants, allowing for positive covenants to burden the land.7 Therefore, a condominium corporation may require you to pay over tens of thousands of dollars to perform necessary building repairs.8 If a condominium owner refuses to pay, the corporation will place a lien against the unit, which would permit the sale of the unit to collect outstanding payment in default.9 Condominium owners in such a position have the option of either paying and perhaps, as a result, accruing a large amount of debt or of being homeless. This issue merits discussion because the average home prices in the GTA are increasing,10 and population density is also projected to increase significantly in the years to come.11 Condominiums offer a more affordable solution to purchasing homes and can house more people per square kilometer than a home. Twenty years ago, there were approximately 6,000 registered condominium corporations; there are now 11,350.12 The number of registered condominiums will only continue to grow. Under the current Ford administration, the Ontario government recently issued a Ministerial Zoning Order, overriding local planning authority and expert analysis, to fast-track a condominium development in Innisfil. This development will be able to support a population of 150,000 people; currently, Innisfil’s population only stands at 40,000.13 The reliance on the condominium market is growing, and therefore adequate consumer protection and oversight must be upheld and implemented through legislative reform.

I will begin the discussion with a summary of the law on covenants and the statutes governing condominium corporations in Ontario, specifically the Act, the Protecting Condominium Owners Act, 2015, and the Condominium Management Services Act, 2015. Additionally, I will present relevant jurisprudence relating to positive covenants in the context of condominiums, specifically the decisions established in Amberwood Investments Ltd. v Durham Condominium Corporation No. 123, 2002 and Black v Owen, 2017.

Subsequently, I will present a comparative overview of condominium regulations across Canada, specifically focused on director qualifications, reserve funds, and contributions to common elements. Following the overview, I will provide recommendations for changes that should be made to the Act. Finally, I will discuss additional measures to realize the goal of consumer protection, specifically the need for an introductory condominium owner training course.

SUMMARY OF THE LAW

Under the common law rule, a positive covenant that requires an expenditure of money or of some affirmative action cannot burden the land unless authorized by statute.14 § 21.1(2) of the Act presents such an exception to the rule and states that “any easement or covenant, whether positive or negative in nature, in an agreement mentioned in subsection (1) shall run with any real property that receives a benefit or is subject to a burden under the agreement.”15 As long as the real property is registered as a condominium corporation under the Act, positive covenants will be enforceable against all condominium unit owners. The following section will outline the law on covenants, the notable Ontario jurisprudence on positive covenants, and the existing condominium legislation.

I. OVERVIEW OF COVENANTS

A covenant is a contractual agreement between parties concerning a parcel of land, and there are two types: positive and restrictive covenants. A positive covenant is an obligation to perform, such as maintaining the property or structural repairs. A restrictive covenant is a promise to refrain from performing, such as refraining from causing a nuisance on the property.16 A covenant is enforceable if two contracting parties agree to enforce the benefit and burden of the covenant.17 A covenant would no longer be enforceable when the original contracting parties to the covenant transfer the land to successors in title.18 The general rule at common law is that the benefit of a covenant may run with the land, but the burden may not.19 However, some exceptions that would render covenants that burden the land enforceable have been recognized.20 For example, restrictive (negative) covenants may run with the land in equity, subject to the satisfaction of specific requirements,21 and thereby be enforceable against successive owners of freehold land.22 Additionally, in leaseholds, positive covenants are enforceable against successive transferees if the lessor or lessee makes an assignment.23 However, positive covenants will generally not burden the land, except for leaseholds, unless, as discussed, privity of contract exists, or additionally, a statutory obligation has been imposed to supersede the established common law rule.24 The Act is an example of legislation that allows for a positive covenant to burden the land.25

II. ONTARIO JURISPRUDENCE

Ontario jurisprudence has continued to affirm the common law principle that the burden of a positive covenant does not run with the land.26 This stance is not as unwavering in other jurisdictions, such as the United Kingdom, which has recognized that some exceptions exist to the common law rule on positive covenants. The case which introduced the principle that positive covenants do not run with the land was Austerberry v Corporation of Oldham.27 Following Austerberry, the rule was broadened by English courts to recognize two exceptions: (1) the benefit/burden doctrine and (2) the conditional grant doctrine.28 The benefit/burden exception, recognized in Halsall v Brizell, is the principle that “a person who claims the benefit of a deed must also take it subject to its burdens.”29 The second exception, referred to as the conditional grant rule, stands for the principle that if an easement or benefit is granted based on the condition of assuming a positive obligation, then that obligation becomes binding.30 There have been attempts to bring these exceptions into Canadian common law,31 but courts have maintained that while this rule may result in unfairness and inconvenience and may no longer meet the needs of modern conveyancing, such reforms should come from the legislature and not the courts.32

In Amberwood, a developer bought land to build condominiums in two phases. Phase I was completed and included the first condominium, recreational, and maintenance facilities, registered as Durham Condominium Corporation No. 123 (‘DCC’).33 The recreational and maintenance facilities were intended to be shared with the second condominium proposed to be built during Phase II on the adjoining parcel of land.34 The easements over each parcels and sharing of expenses were captured under a reciprocal agreement and registered on the title of both parcels.35 The developer completed Phase I, however, he experienced financial difficulties during the second condominium development and sold the parcel of land to Amberwood Investments Ltd. (‘Amberwood’).36 Under the reciprocal agreement, Amberwood had to pay DCC for interim expenses until the completion of the condominium building on the second parcel of land.37 Amberwood initially paid the interim expenses but eventually ceased payments. Amberwood claimed that they were not bound by the positive covenant of the reciprocal agreement signed by DCC and the developer because they were successors in title and not the original contracting parties to the agreement.38 DCC argued that both the benefit and burden doctrine and conditional grant doctrine would be applicable in this case and that the courts should recognize these exceptions. The court rejected the applicability of the benefit and burden doctrine because it stated that DCC failed to establish any correlation between the benefit that Amberwood was obtaining and the burden of the positive covenant.39 Furthermore, the court also rejected the conditional grant exception and stated that recognizing such an exception would result in a profound and broad change in the law because all that would be required in an agreement would be “ a general statement of intent that the continuing right to the use and enjoyment of all the benefits …was conditional upon the acceptance of the burden contained in any of the covenants.”40 The court held that the rule at common law is that positive covenants do not run with freehold land and legislative action is required for reform, and therefore Amberwood, a successor in title, was not bound to pay interim expenses under the reciprocal agreement.41

Approximately 15 years later, in Black v Owen, the court confirmed that the rule that positive covenants do not run with the land continues to be good law and that neither of the exceptions are applicable in Ontario.42 In Black, the appellants contested that they had a legal obligation to pay an annual levy for the maintenance costs of private roads and common areas of Wychwood Park.43 The appellants represent one of 60 residential houses in the community whose properties are subject to the Trust Deed, entered into on July 3, 1981, by the original owners of the land parcels.44 The divisional court in Black held that both the benefit and burden and the conditional grant exceptions applied to the case.45 The Superior Court overturned the lower court judgment in Black because the Appeal Judge failed to follow the binding appellate precedent established in the Amberwood decision.46 The court held that the Trust Deed was unenforceable and that appellants had no obligation to pay the annual levy.47 The court reasoned that a trust document that imposes a positive obligation for payment, is unenforceable under common law, unless it is the subject of a statutory exception.48 The court dismissed the UK exceptions of the benefit and burden doctrine and the conditional grant exception for similar reasons as in Amberwood.49 The court affirmed Amberwood and held that it would be inadvisable to adopt the exception of English common law because of “the uncertainties and the many frailties of the existing common law in England in this area of law” and restated that reform in this area is best left to the legislature.50

Common law has repeatedly established that positive covenants do not run with the title. The enactment of the first Condominium Act in 1967 was primarily motivated to address the issue pertaining to positive covenants. Today, condominium owners are bound to pay for common expenses and have other positive obligations because those obligations have been enforced by statute.51

III. CONDOMINIUM LEGISLATION

A condominium is a form of private homeownership in which the buyer owns a dwelling unit in a multi-residential building and shares title to land and common elements, including amenities such as fitness centres, pools, and parking garages. In Ontario, condominiums were recognized as a form of homeownership through the passing of the Condominium Act in 1967. Ontario has amended this Act several times, and the statutes currently governing condominiums are the Condominium Act (‘Act’), 1998, the Protecting Condominium Owners Act (‘PCOA’), 2015, and Condominium Management Services Act (‘CMSA’), 2015. These acts govern the relationship between a condo’s creation, ownership, and governance. A condominium is a corporation recognized as a distinct legal entity and must thus produce a declaration, rules, and by-laws for the management and governance of the corporation. A developer will build the condominium, but once the developer sells the units off to the buyers, the condominium corporation becomes the owners’ responsibility. The condominium owners will elect a board of directors to preside over matters pertaining to the building, such as reserve funds, operation costs and day-to-day management.52

Since the Act’s introduction, there has been a push for reform to increase consumer protection further. In response, Ontario introduced PCOA in 2015, which came into force on November 1, 2017. Some of the significant amendments that came through the introduction of the PCOA were: establishing a Condominium Authority to regulate and oversee matters pertaining to the corporation;53 establishing a Condominium Authority tribunal to handle dispute resolutions;54 imposing training requirements for directors of condominium corporations;55 providing owners with information certificates containing information about the corporations finances insurance reserve funds and legal proceedings; establishing a Condominium Registrar responsible for maintaining an electronic database containing information of every return and notice submitted by condominium corporations;56 and the enactment of a separate act to licence and regulate property managers, the CMSA.57

Under the CMSA condominium managers must be licensed to oversee the day-to-day operations of a condominium. The property manager obtains the licence from the Condominium Management Authority of Ontario, the regulatory body that sets the standards and oversees the mandatory licensing of condominium management.58 For a property manager to obtain a condominium management provider licence, the following requirements must be met: completing educational courses, experience in providing condominium management services (2,920 hours), and paying an application fee. The licence must be renewed annually, and the licensee must partake in continuing education requirements throughout the year.59 To meet the requirements for this license, condominium managers who do not hold a general licence have until May 31, 2022.60

The provisions were enacted to increase consumer protection through better oversight, greater disclosure, and access to justice through internal tribunals for dispute resolution. Furthermore, more stringent requirements are placed upon directors of condominium corporations to increase their level of competency to create stronger boards.61 Nonetheless, although the changes aim to increase consumer protection, it remains unclear whether the Act and the new regulatory body will meet their objectives because it is still too early to comment on the effects of this change, if any, on condominium owner protection.

IV. COAST TO COAST COMPARISON

Condominium corporations are regulated provincially, and as such, the legislation across Canada pertaining to condominium corporations is varied. The following section will provide a comparative overview of condominium regulations across Canada, specifically focused on the rights and obligations of the corporation and the owner across various Canadian jurisdictions. A critique and recommendations will follow of the Act under each heading regarding the new amendments.

RIGHTS AND OBLIGATIONS OF THE CORPORATION

A condominium corporation is responsible for governing the affairs of the condominium. The following section will provide a jurisdictional comparison of the requirements pertaining to the i) governance and ii) reserve fund of the condominium corporation. Subsequently, recommendations under each heading will be made to address the shortcomings of the Ontario Act, specifically director disqualifications (§ 29(2)(e)) and re-defining what constitutes a "major repair" (§ 93 (2.1)). The following section is not exhaustive or representative of the only recommendations that can or should be made to the Act but are the ones deemed to be most relevant in upholding the goal of condominium owner protection from capricious enforcement of positive covenants.

i. Governance of the Corporation

A condominium corporation is a separate legal entity and is managed by an appointed board of directors. The board is responsible to act on behalf of the corporation and to perform the duties of the corporation, while the day-to-day management is often delegated away to professional managers. In many provinces, the initial board of a corporation is appointed by the declarant (“developer”). In Ontario, Quebec, Manitoba and Nova Scotia once enough units have been sold, such that majority is no longer owned by the declarant, a new board must be elected. In other provinces, the new board is elected at an annual general meeting.62

Unfortunately, many condominium owners feel that the board of directors do not meet the appropriate standards of transparency and accountability.63 In Ontario, the Act now requires that all directors appointed after November 1, 2017, complete mandatory director training within 6 months, or they will be disqualified pursuant to § 29(2)(e) of the Act.64 The training is offered for free through the Condominium Authority of Ontario (“CAO”) and includes training on director responsibilities and obligations. The training requires 3-6 hours to complete, remains valid for 7 years and a certificate is issued upon completion.65 No other province has a mandatory training requirement imposed on directors.66

However, this amendment is still not without its shortcomings. The following recommendations should be implemented to improve § 29(2)(e)) of the Act pertaining to director disqualification to improve director competency: (1) mandate a formal examination following course completion; (2) increase the duration of the course and (3) reduce the period of time for which the certificate is valid for to 3 years. Firstly, there is no formal examination issued to demonstrate director competency following the completion of the course. As a result, there is no indication that the trainee has retained the information or that they are familiar with its practical application. Secondly, directors may complete the training in 3-6 hours, compared to the training for property managers, which includes 6 courses, each approximately 3 months in length, with a formal examination.67 Given a directors’ role in condominium management, a more stringent educational requirement should be imposed. The educational requirement should not be as stringent as the requirements imposed on property managers because directors may not remain in their role for a sufficient period to justify such strenuous requirements, however, the training should exceed the current 3-6 hour modules. Lastly, the training should not remain valid for 7 years and should be amended instead to expire every 3 years. A director may be elected for a term of three years or less based on the by-laws.68 The training should be set to expire after 3 years, so that upon re-appointment or re-election, the director is required to undergo training anew to refresh their competency.

ii. Reserve Fund

A condominium corporation is responsible for maintaining a reserve or contingency fund for repairs and maintenance of the common elements. A separate fund exists for general operating expenses. Owners of condominiums contribute to the reserve fund, for the maintenance of common elements. Alberta, Saskatchewan, Ontario, Manitoba, New Brunswick, Nova Scotia, Newfoundland and Labrador and Northwest Territories mandate that certain reporting and oversight requirements are met pertaining to the reserve fund, referred to as “reserve fund studies” to ensure that there are sufficient funds. Whereas, P.E.I, Yukon and Nunavut do not have provisions for reserve fund in their legislation.69 The Act sets out the purpose of the reserve fund to be used for, “major repair of a unit, the common elements or assets, if any, of the corporation, if the corporation has the obligation to repair in that regard under this Act.,” under § 93 (2.1) of the Act.70 The Act defines “major repair” as “repair as determined in accordance with the regulations.”71 This definition is overbroad and is not sufficiently clear. If unit owners are contributing to the reserve fund, it is important that the Act effectively defines the purpose pursuant to which funds will be withdrawn from the reserve. For example the Residential Condominium Conversion Projects regulation, defines a major repair as, “any repair or replacement to the pre-existing elements, a) that is not ordinary maintenance, b)for which the cost exceeds $ 2,000.”72 The Act should be more prescriptive in defining monetary thresholds which would constitute a major repair, to increase consumer protection and transparency as to withdrawals from the reserve fund.

RIGHTS AND OBLIGATIONS OF THE OWNER

A condominium owner has a positive obligation to contribute to the repairs of the condominium and monthly fees imposed by the corporation pursuant to § 21.1(2) which grants that “any easement or covenant, whether positive or negative in nature, in an agreement mentioned in subsection (1) shall run with any real property that receives a benefit or is subject to a burden under the agreement.”73 The following section will compare the contribution to common elements across various Canadian jurisdictions and argue that an § 97 (5)(c)(i) of the Act should be amended to decrease the monetary threshold for modifications without notice, to support condominium owner protection mandates. Further, this section will argue that introductory training courses are required for condominium owners to increase their financial and overall awareness of the condominium corporation.

i. Contribution to Common Expenses

The condominium corporation is responsible to repair and maintain the common elements across all jurisdictions. In British Columbia, Ontario, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, P.E.I, and the three territories the corporation may shift the responsibility of repair and maintenance of some or all of the common elements to the unit owners. In Manitoba, New Brunswick, Nova Scotia, P.E.I, Ontario and the three territories, units will be repaired by the corporation after damage or failure, except where the corporation states otherwise through by-laws or in the declaration.74

The new Act in Ontario has changed board disclosure obligations pertaining to modifications without notice under § 97 (5)(c)(i) of the Act. The amendment stipulates that the board must provide notice to unit owners when the cost of the addition, alteration or improvement is $30, 000 or 3% of the budgeted common expense for the fiscal year (whichever is less), or if the modification results in a reduction of use and enjoyment of the common elements.75 Prior to this amendment, the threshold was significantly lower requiring notice to be given to unit owners when the modification was greater than $ 1,000 or 1% of the annual budgeted common expenses.76 One of the objectives of the amended Act is to introduce, “extra safeguards to protect condo buyers and help them make more informed decisions.”77 Therefore, it appears counter-intuitive to the objective of the amended Act to increase the modifications without notice from $ 1,000 or 1% to $ 30,000 or 3% (whichever is less). As result of this amendment, there is actually decreased transparency and accountability to unit owners. The Act should lower the cap to the original $ 1,000 or 1% for modifications without notice, because $30,000 or 3% is a significant withdrawal for a corporation to make from a reserve fund for modifications without requiring notice to the unit owners contributing to this fund.

ii. Mandatory Introductory Condominium Owner Training Course

Education of condominium owners can assist in increasing their awareness of the condominium corporation’s financial budgeting and day-to-day business of the corporation. The new amendments to the Act have introduced the mandatory preparation of a Condominium Guide to be presented to new condominium owners concerning the nature of condominiums and how they are managed. This is prepared by the Minister or the Condominium Authority and includes information that the drafter considers important to the purchaser and information about the rights and obligation of the owners and the board of the corporation.78 However, these measures should be extended to include a mandatory introductory online course, on financial statements, common expenses, and their rights concerning access to financial records. A course providing financial education to condominium owners could serve to increase their understanding of condominium fees, and alleviate some of the tension that may exist when owners are facing rising monthly maintenance fees.

CONCLUSION

The amendments to the Act represent significant development in the realization of consumer protection goals, and Ontario remains ahead of many other Canadian jurisdictions in the regulation of condominiums. The amendments to the Act are likely to improve oversight of the corporation, increase disclosure obligations and improve access to information for condominium owners. Nevertheless, additional strides can be made to further realize the goal of consumer protection in Ontario condominium legislation, specifically, amendments to the following sections should be made: director disqualifications (§ 29(2)(e)), re-defining what constitutes a "major repair" (§ 93 (2.1)), and decreasing the monetary threshold for modifications without notice (§ 97 (5)(c)(i)). Additionally, a positive obligation upon condominium owners should be imposed to attend a mandatory introductory training course on their rights and obligations in condominium ownership. As the condominium market continues to grow, the legislature should continue to be mindful of how to continue to support the rights of owners entering the market.

REFERENCES

i. LEGISLATION

Civil Code of Québec, SQ 1991, ch 64.

Condominium Act, SO 1998, c19.

Condominium Act, RSNS 1989, c 85.

Condominium Act, RSNWT 1988, c C-15.

Condominium Act, RSPEI 1988, C c-16.

Condominium Act, RSY 2002, c 36.

Condominium Act, SM 2011, C30.

Condominium Act, SNL 2009, c C-29.1.

Condominium Property Act, RSA 2000, c C-22.

Residential Condominium Conversion Projects,O. Reg. 522/17

ii. JURISPRUDENCE

Amberwood Investments Ltd. v Durham Condominium Corp. No.123 (2002), 58 OR (3D) 481, 211 DLR (4th) 1 (Ont Ca)

Austerberry v Oldham (1885), 29 Ch D 750 (Eng. C.A.).

Black v Owen (2017) 137 OR (3d) 334 at para 40, 413 DLR (4th) 135.

Halsall v Brizell and Others (1956), [1957] Ch 169

iii. SECONDARY SOURCES

Canadian Condominium Institute, “Canadian Condominium Legislation: A Coast to Coast Comparison” (2013) at 6, online (pdf): Canadian Condominium Institute.

Canada’s Public Policy Forum, “Growing Up: Ontario’s Condominium Communities Enter a New Era: Condominium Act Review Stage Two Solutions Report” (September 2013), online(pdf): Canada’s Public Policy Forum

Craig Carter, Real Estate Transactions: Cases, Texts and Materials (Toronto: Emond Montgomery Publications Limited, 2018) at 409.

Condominium Management Regulatory Authority of Ontario, “Education Requirements for a General Licence”, online: Condominium Management Regulatory Authority of Ontario

Condominium Management Regulatory Authority of Ontario, “Mandate”, online: Condominium Management Regulatory Authority of Ontario

Condominium Management Regulatory Authority of Ontario, “Upcoming Expiry of Transitional General Licences”, online: Condominium Management Regulatory Authority of Ontario

Ethan Sager, “4745 Jane Street Condos” (5 March 2022), online: Property.ca Inc.

Government of Ontario, “Condominium law changes”, online: Government of Ontario

Government of Ontario, “Ontario population projections” (23 June 2021), online: Government of Ontario

Humber River College, “Advance your career in Condominium Management”, online: Humber River College

Joe Grant, “Overview of Changes to Ontario’s Condominium Act”, (3 April 2017), online(pdf): LLF Lawyers

Lash Condo Law, “A Guide to the Condo Act Amendments as of November 1st” (January 2018) at 3, online(pdf): LashCondoLaw

Mary Mossman, Property Law: Cases and Commentary (Toronto: Emond Montgomery Publications Limited, 2019).

Noor Javed, “Doug Ford’s Government fast-tracks huge futuristic development near Lake Simcoe” The Toronto Star (10 August 2021), online

Office of the Auditor General of Ontario, “Value-for-money Audit, Condominium Oversight in Ontario” (December 2020), online(pdf): Office of the Auditor General of Ontario

Ontario Law Reform Commission, Report on Covenants Affecting Freehold Land (Toronto: Min. of the AG., 1989).

Ray Mikkola, “Enforcement of positive covenants on subsequent owners” (27 April 2018), online(pdf): The Lawyer’s Daily

Samantha Beattie, “Condo owners in aging building face $14M in repairs. If they can’t pay their part, they risk losing homes”, CBC News (24 January 2022), online

Toronto City Planning, “Condominiums: Two Decades of New Housing”, (May 2020) at 2, online(pdf): City of Toronto

Toronto Regional Real Estate Board, “Condo Market Report: Fourth Quarter 2021” (2021), online (pdf): Toronto Regional Real Estate Board.

Toronto Regional Real Estate Board, “GTA Realtors Release February Stats” (2 March 2022), online: Toronto Regional Real Estate Board

Endnotes

1 Toronto Regional Real Estate Board, “Condo Market Report: Fourth Quarter 2021” (2021) at 1, online (pdf): Toronto Regional Real Estate Board.
2 Ethan Sager, “4745 Jane Street Condos” (5 March 2022), online: Property.ca Inc.
3 SO 1998, c19, s 21.1 [Condo Act].
4 Mary Mossman, “Property Law: Cases and Commentary” (Toronto: Emond Montgomery Publications Limited, 2019) at 694- 697. Mossman
5 Austerberry v Oldham (1885), 29 Ch D 750 (Eng. C.A.). [Austerberry]
6 Ontario Law Reform Commission, “Report on Covenants Affecting Freehold Land” (Toronto: Min. of the AG., 1989) at 2. [OLRC Report]
7 Ibid at 3.
9 Condo Act, supra note 3, s 8.5.
10 Toronto Regional Real Estate Board, “GTA Realtors Release February Stats” (2 March 2022), online: Toronto Regional Real Estate Board.
11 Government of Ontario, “Ontario population projections” (23 June 2021), online: Government of Ontario.
12 Office of the Auditor General of Ontario, “Value-for-money Audit, Condominium Oversight in Ontario” (December 2020), at 1, online(pdf): Office of the Auditor General of Ontario.
13 Noor Javed, “Doug Ford’s Government fast-tracks huge futuristic development near Lake Simcoe” The Toronto Star (10 August 2021), online.
14 Black v Owen (2017) 137 OR (3d) 334 at para 40, 413 DLR (4th) 135. [Black]
15 Condo Act, supra note 3, s21.1(2).
16 Mossman, supra note 6 at 694- 697.
17 Ibid at 697.
18 OLRC Report, supra note 8 at 2.
19 Austerberry, supra note 7 at para 26.
20 OLRC Report, supra note 8 at 3.
21 Mossman, supra note 6 at 715 [Mossman citing Tulk v Moxhay] [“principles for the running of the burden of a covenant in equity now require: 1. notice on the part of the assignee of the covenantor; 2. A negative or restrictive covenant, in substance; 3. Land benefited by the covenant retained by the covenantee; 4. A covenant that touches and concerns the land and not merely a personal covenant; and 5. Intention on the part of the covenantor to bind successors and not just the covenantor personally”].
22 OLRC Report, supra note 8 at 3.
23 Mossman, supra note 6 at 698.
24 Ibid.
25 Condo Act, supra note 3, s 21.1(2).
26 Black, supra note 14 at para 72; Amberwood Investments Ltd. v Durham Condominium Corp. No.123 (2002), 58 OR (3D) 481 at para 50, 211 DLR (4th) 1(Ont Ca) [Amberwood].
27 Austerberry, supra note 5.
28 Amberwood, supra note 26 at paras 56,78.
29 Amberwood, supra note 26, citing Halsall v Brizell and Others (1956), [1957] Ch 169 at para 23.
30 Ibid at 80.
31 Black, supra note 14 at para 18, Amberwood, supra note 26 at para 14.
32 Amberwood, supra note 26 at para 17.
33 Ibid at para 2.
34 Ibid at para 4.
35 Ibid.
36 Ibid at para 5.
37 Ibid at para 8.
38 Ibid at para 10.
39 Ibid at para 73.
40 Ibid at para 87.
41 Ibid at para 50.
42 Black, supra note 14 at 72.
43 Ibid at para 9.
44 Ibid at para 8.
45 Ibid at para 7.
46 Ibid at para 36.
47 Ibid at para 73.
48 Ibid at para 40.
49 Ibid at paras 47, 65.
50 Ibid at 48.
51 Ray Mikkola, “Enforcement of positive covenants on subsequent owners” (27 April 2018), online(pdf): “The Lawyer’s Daily”, Pallett Valo Law
52 Toronto City Planning, “Condominiums: Two Decades of New Housing”, (May 2020) at 2, online(pdf): City of Toronto, Toronto City Planning.
53 Condo Act, supra note 3, s1.1 (1)).
54 Ibid, s 7(4).
55 Ibid, s 29(2).
56 Joe Grant, “Overview of Changes to Ontario’s Condominium Act”, (3 April 2017) at 3, online(pdf): LLF Lawyers [Grant]
57 Condominium Management Services Act, SO 2015, c28, Sched 2.
58Condominium Management Regulatory Authority of Ontario”, “Mandate”, online: Condominium Management Regulatory Authority of Ontario, CMRAO Mandate.
59 Condominium Management Regulatory Authority of Ontario, “Education Requirements for a General Licence”, online: Condominium Management Regulatory Authority of Ontario
60 Condominium Management Regulatory Authority of Ontario, “Upcoming Expiry of Transitional General Licences”, online: Condominium Management Regulatory Authority of Ontario
61 Grant, supra 56 at 18.
62 Canadian Condominium Institute, “Canadian Condominium Legislation: A Coast to Coast Comparison” (2013) at 6, online (pdf): Canadian Condominium Institute
63 Canada’s Public Policy Forum, “Growing Up: Ontario’s Condominium Communities Enter a New Era: Condominium Act Review Stage Two Solutions Report” (September 2013), online(pdf): Canada’s Public Policy Forum
64 Condo Act, supra note 3, s 29(2).
65 Lash Condo Law, “A Guide to the Condo Act Amendments as of November 1st” (January 2018) at 3, online(pdf): LashCondoLaw
66 Condominium Act, SM 2011, C30, s 66 (Manitoba); Condominium Act, SNL 2009, c C-29.1, s 28(Newfoundland and Labrador); Condominium Property Act, SNB 2009, cC-16.05, s 29 (New Brunswick); Condominium Act, RSY 2002, c 36 (Yukon); Condominium Property Act, RSA 2000, c C-22 (Alberta); Strata Property Act, SBC 1998, c 43, s 28 (British Columbia); Condominium Property Act, SS 1993, c C-26.1 (Saskatchewan); Civil Code of Québec, SQ 1991, ch 64 (Quebec); Condominium Act, RSNS 1989, c 85, s 15A (Nova Scotia); Condominium Act, RSNWT 1988, c C-15 (Northwest Territories & Nunavut); Condominium Act, RSPEI 1988, C c-16 (Prince Edward Island)
67 Humber River College, “Advance your career in Condominium Management”, online: Humber River College
68 Condo Act, supra note 3, s 31.
69 Canada’s Public Policy Forum, supra note 63 at 9.
70 Condo Act, supra note 3, s 93(2).
71 Ibid, s 93 (2.1).
72 O. Reg. 522/17, s 1(c).
73 Condo Act, supra note 3, s21.1(2).
74 Canada’s Public Policy Forum, supra note 63 at 9.
75 Condo Act, supra note 3, s 97(5).
76 Grant, supra note 56 at 13.
77 Government of Ontario, “Condominium law changes”, online: Government of Ontario
78 Grant, supra note 56 at 8.