Part 47 published on 01/09/14
Declaration amendment oppressive to Applicants
In 2005, the Applicants purchased three units from the developer:
- A parking and locker unit in the respondent condominium; and
- A residential unit in a neighboring condominium.
At the time, this was in compliance with the Declaration of the respondent condominium corporation. In 2010, the Declaration of the respondent condominium corporation was amended (by consent of 80% of the owners). The amendment prevented the parking and locker units in the respondent condominium from being used or owned by non-residents of the building. The Court said:
“In essence, the new provisions prohibit the sale or the transfer of parking units and storage units in the building to non-owners of a residential unit (in the building).”
…
“The effect of the amended Declaration, is that the applicants are prima facie prohibited from even using the parking unit or storage unit they own (in the respondent condominium); however, the Corporation has not enforced the use of that provision against them and has offered to grandfather their continued use of their parking and storage units for as long as they own their residential unit.”
The Applicants’ concern, however, was that they would not be able to sell the parking and locker units to a purchaser of their residential unit (located in the neighbouring condominium).
The Court found that the amendment to the Declaration was oppressive to the Applicants and ordered that the Declaration be further amended to include a specific exception, allowing the owner of the Applicants’ residential unit (in the neighbouring condominium) to own and use a parking and locker unit in the respondent condominium. This would allow the Applicants to sell all three units together. The Court rejected the condominium corporation’s argument that a monetary remedy (to address any loss or oppression suffered by the Applicants) would be appropriate and sufficient – rather than requiring a re-amendment of the Declaration.