Part 45 published on 01/02/14
Court orders amendment to condominium declaration and plan
The condominium had been declared in 2005. The condominium corporation had previously obtained an injunction preventing the developer from continuing with construction of a 24-unit apartment building on neighbouring lands. [See Condo Cases Across Canada, Part 41, February 2013]
The condominium corporation now applied for an order to amend the condominium declaration and plan. Part of the condominium corporation’s proposal was that the neighbouring parcel (containing the partially-built apartment building) would be added to the condominium as a unit of bare land (“Bare Land Unit A”).
The developer opposed the condominium corporation’s application. The developer had spent approximately $1 million carrying out the partial construction of the developer’s desired 24-unit apartment building on Bare Land Unit A. The developer now proposed a modified amendment in which Bare Land Unit A would have an 18-unit apartment building and five single family homes.
The Court said that some sort of development, on Bare Land Unit A, would be “just and equitable”, but held that the developer’s proposed 18-unit apartment building would significantly change the character of the condominium from its present composition of single-family units.
The Court granted the condominium corporation’s application, and thereby amended the declaration and plan with Bare Land Unit A as a unit of bare land. However, the Court ordered that the developer could submit development plans (with a specific number and configuration of four-plex units) within 90 days. Failing such, the condominium corporation would be at liberty to apply for removal of the partially-constructed building on Bare Land Unit A.
The Court said:
The only solution that I find to be both just and equitable and to end the confusion and uncertainty is to permit the Condo Developer to proceed with the construction of four-plex units or a combination of four-plex and single-family units on Bare Land Unit A. On the record before me, there is insufficient information to order the Condo Developer to proceed with a specific number or configuration of four-plex condo units. If the Condo Developer wishes to proceed with the development of four-plex units on Bare Land Unit A, I order that the Condo Developer submit the plans required by s.6(1), (2) and (3) of the (Condominium Act) for additional condominium units on Bare Land Unit A within 90 days to this Court for approval. The Condo Corp. is at liberty to make submissions on the Condo Developer’s proposed plans.