10/09/2019 – Jurisdiction Ontario
Part 69 published on 01/03/2020
Condominium corporation failed to give notice of lien to owner’s spouse
The owner of the unit was separated from his spouse. The spouse (the Applicant in this proceeding) had registered a “Designation of Matrimonial Home” (DMH) on title to the unit. The owner then defaulted on his common expense payments, and the condominium corporation registered a lien against the unit, but without providing notice to the spouse. The corporation ultimately pursued power of sale process, and the spouse received notice of the process at that stage. The spouse subsequently obtained an order under family law, granting her exclusive possession of the unit and title to the unit.
The spouse acknowledged that the condominium corporation was entitled to recover the arrears, interest and a late fee under the lien, but argued that all of the corporation’s costs were not recoverable (due to the corporation’s failure to provide notice to the spouse). The Court agreed. The Court said:
- A condominium corporation was obligated to make reasonable enquiries to determine if the unit was a matrimonial home and the address of any untitled spouse.
- In this case, where a DMH had been registered against the unit, the condominium corporation should have made note of the DMH when doing the normal title searches before providing notice of the lien to the owner and any mortgagee.
- Because of the failure to meet this obligation to provide notice to the spouse, the lien was invalid as against the spouse, and the legal and other collection costs were not recoverable as against the spouse.