In a decision in Alberta, a husband and wife, the owners of a condominium unit, required a live-in caregiver. One was blind and the other suffered from dementia.
After the caregiver was hired, the condominium corporation brought an application for a declaration that the owners were in violation of a bylaw. It states that that units are “occupied or intended to be occupied as a residence by one family alone…and in which no roomers or boarders are allowed.”
Fortunately, the court took a reasonable and practical result in this case. The fact that a live-in caregiver was required to provide assistance did not mean that the unit was used other than as a single-family dwelling or for residential use. It would be unreasonable to include as “roomers” a live-in caregiver required for necessary care. One has to question who made the decision on behalf of the condominium to bring such a type of application.
(Condominium Plan No. 9910225 v Davis, 2013 ABQB 49)
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A condominium corporation acts through its board of directors. In an Ontario case, a representative of a corporation’s property manager entered into a contract for natural gas “without authority”.
The directors discussed this contract as early as 2009 at a board meeting. However, the board did not bring an application to declare the contract invalid until September 2012. The Ontario Court held that action barred by the Limitations Act (two years). A claim begins to run when damage is discovered. The board of directors was aware by 2009, when discussing this contract, that it was not authorized. It obtained advice from legal counsel and the property manager in 2009.
The fact that the energy supplier did not respond to the board and its allegations did not postpone the limitation period, so by 2012 the condominium corporation’s claim was statue barred and dismissed. (York Condominium Corporation No. 62 v. Superior Energy Management Gas L.P., 2013 ONCA 789)
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In a different case, a developer intended to subdivide land in Edmonton into various lots and sell them. There were two individual buyers who entered into an Agreement of Purchase and Sale as well as a corporate builder, which was to buy 14 lots.
The agreement indicated that the subdivision plan had to be registered and that building permits must be obtained by a “condition date”, failing which if the vendor (developer) did not waive the condition (and made reasonable efforts to satisfy it) the condition would be terminated.
The vendor maintained that he failed to obtain the subdivision registration and that the contracts were at an end. However, both the builder and the individual purchasers sued the vendor and the court ordered damages awarded.
This case defined the required reasonable efforts that had to be shown by the vendor. Here the vendor could not meet that test as he did not become involved in prudent and moderate action with sustained diligence to achieve the condition. The vendor was in breach. In addition, the vendor’s agent exercised no diligence at all and the developer assumed a passive role. This being the case, damages were awarded to the purchasers. (1092369 Alberta Ltd. v. Joben Investments Ltd., 2013 ABQB 310)
Full cases can be read at www.canlii.org. Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
