Part 53 published on 01/02/16
Court finds that liens were not properly registered
The strata corporation had registered liens against five units owned by the respondents. The Court ordered that the liens be removed from title, for the following reasons:
a) The strata corporation did not provide proper notice of the arrears pursuant to Section 61 of the Strata Property Act. Notice by registered mail was not in accordance with Section 61.
b) The strata corporation did not provide two weeks’ notice before filing the liens, as required by Section 112 of the Act.
c) The strata corporation improperly added various costs to the face amounts of the liens, including costs for “title search”, “lien placement”, “lien release”, “GST on lien charges”, and a $400 “lien admin charge”. The Court said:
As I read ss. 116, 118, and Form G together, the face amount claimed at item 2 of the lien ought to be only the precise amount owing under s. 116. The “costs” under s. 118 are not to be enumerated but instead are included in the phrase “plus costs permitted under Section 118 of the Strata Property Act”. The s. 116 claim is in this way kept quite distinct from the s. 118 costs claim.
The reference in s. 118 to “adding” costs to the amount owing to the strata corporation under a Certificate of Lien, means that these costs can be “added” to the amount secured by the lien, and are taken into account when considering priorities and the amount required to redeem the property.
I conclude that the petitioner erred in the preparation of the Liens, by unilaterally rolling its own estimation of s. 118 costs into the figure which it claimed was the “amount owing” under the Liens. Here the proper figure to be used for the “amount owing” under s. 116 was only the outstanding strata fees.
d) The strata corporation “was in error in refusing to accept the several attempts at payment of the strata fees by the respondents”.
The Court also said,
It also follows that the subsequent steps to enforce the Liens as taken by counsel for the petitioner by way of the Second Demand Letters and commencement of these proceedings, were also not appropriate.