24/05/2019 – Jurisdiction Alberta
Part 69 published on 01/03/2020
Court confirms right of owner to assert claim respecting common elements
Magnus (an owner in a condominium complex) had instructed his lawyer (Mason) to assert a claim against the Developer of the condominium complex. The claim was for damages resulting from alleged deficiencies in the common property of the condominium complex which had resulted in special assessments that Magnus was required to pay. Mason had started the claim, but the claim was subsequently dismissed for want of prosecution or inordinate delay.
Magnus then sued Mason for negligence in failing to properly prosecute the claim and therefore allowing the claim to be dismissed.
Mason argued that the claim that had been dismissed had no chance of success in any event because a condominium owner cannot assert a claim in relation to alleged deficiencies in the common elements.
The Court held that Magnus did have the right to assert the claim against the Developer (ie. that the condominium corporation did not have the exclusive right to assert such claims) and accordingly declined to summarily dismiss Magnus’ claims against Mason.