09/20/2018 – Jurisdiction Ontario
Part 64 published on 01/12/2018
Condominium corporation entitled to lien for recovery of enforcement costs
In this mixed-use condominium, a restaurant operation caused noise that violated the corporation’s declaration and rules. The corporation obtained a Court order for compliance, and then incurred significant expenses (primarily legal costs) to enforce the order. The corporation ultimately demanded payment of those expenses and then liened the unit for recovery. The tenant of the unit (the restaurant owner) challenged the lien.
The Court held that the lien was valid. The Court said:
(The tenant’s) failure to comply with the rules of the condominium corporation including the legal fees and disbursements for obtaining the compliance order, which costs were paid, and the legal fees and disbursements incurred in enforcing the compliance order, which were claimed but not paid, were recoverable against (the unit owner) as common expenses under s. 85 of the Act.
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Returning to the case at bar, MTCC No. 596’s $40,175 lien for common expenses appears largely to be legal costs associated with enforcing compliance with the Consent Order. Following the authority of Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., the common expenses of the $40,175 are not common expenses pursuant to s. 134 (5) of the Condominium Act, 1998, but these costs are recoverable as common expenses pursuant to s.85(1) of the Act.
The Court noted that an owner can always challenge the amount of a lien, so the condominium corporation doesn’t have a “blank cheque” to lien for costs.
Metropolitan Toronto Condominium Corporation No. 596 v Best View Dining Ltd., 2018 ONSC 5058