Part 33 published on 01/02/11
Condominium owner has no legal capacity to assert claims respecting the common elements. Owner’s claim respecting unit damage stayed unless or until owner elects to opt out of overlapping action by condo corporation
The condominium corporation had asserted claims with respect to alleged common element deficiencies and alleged unit deficiencies. An owner commenced its own claims with respect to alleged common element deficiencies and with respect to alleged deficiencies in the owner’s unit. The defendant developer sought an order striking or staying the owner’s claims. The lower Court refused to grant such an order. [See Condo Cases Across Canada, Part 30, February 2010] On appeal, the Divisional Court held as follows:
- A condominium unit owner has no legal capacity to assert claims in relation to the common elements.
- The owner’s claims with respect to the unit were also stayed, but with leave to lift the stay if the owner elected to opt out of the condominium corporation’s action.
The decision included the following paragraph:
In agreeing with the conclusion that the condominium corporation is the only appropriate plaintiff in relation to an action concerning the common elements, it is important to remember that an individual unit owner is not without a remedy if the corporation refuses to bring such an action. He or she has a claim against the condominium corporation, the entity charged under the Act with the responsibility for maintaining and repairing the common elements.
[Editorial note: The Divisional Court didn’t elaborate on what sort of claim might be asserted by the owner against the condominium corporation, as described in the above paragraph. Is the owner’s right simply to insist that the condominium corporation fulfill its maintenance and repair obligations? Or can a condominium owner take the position that the condominium corporation has a duty to assert claims in certain circumstances? Again, the Court did not elaborate.]