Part 19 published on 01/09/07
Exclusive-use rights can’t be transferred without an amendment to the Declaration
The applicant, Joseph Mikhail, was the President of the company that developed Essex Condominium Corporation No. 47. Under the terms of the Declaration (prepared and registered under the direction of Mr. Mikhail), 25 exclusive-use parking spaces were allocated to Unit 6, Level 3. When Unit 6, Level 3 was sold to a purchaser, the purchaser signed a document authorizing Mr. Mikhail “to take all necessary steps to remove (24 of the exclusive-use parking spaces) from the appurtenant common interest of Unit 6, Level 3”.
Mr. Mikhail then applied to Court for an Order transferring control of the 24 parking spaces to him (in order to allow him to grant those parking spaces to other purchasers).
The Court dismissed the Application. The Court said that any change to the exclusive-use rights would require an Amendment to the Declaration, with the consent of the owners of 90% of the units, in accordance with Section 107 of the Condominium Act, 1998. There was no other basis upon which the exclusive use rights could be “transferred”.
[Editorial Note: I note that the Court did not consider the possibility of an amendment to the Declaration by Court Order, pursuant to Section 109 of the Act.]