01/03/2017 – Jurisdiction Ontario
Part 58 published on 01/06/2017
Although TSCC 1809 had the benefit of an easement over a shared-laneway, TSCC 1809 was not obligated to share in the costs
TSCC 1809 had the benefit of an easement over part of the TSCC 1633 lands, namely a shared laneway. However, there was no cost-sharing agreement. TSCC 1633 claimed that TSCC 1809 was obligated to contribute to the costs of the laneway. TSCC 1809 refused.
The Court ruled in favour of TSCC 1809, finding that there was no legal basis on which TSCC 1809 could be forced to contribute to the laneway costs. The Court said:
In my view, TSCC 1633 has failed to establish that there has been a breach of its reasonable expectations through the conduct of TSCC 1809. The reasoning of the Court of Appeal in (the case of MTCC 1272 v. Beach Development (Phase II) Corp.) is applicable to this case. There is nothing in the TSCC 1633 Declaration that refers to cost sharing with TSCC 1809, or a cost-sharing agreement to be entered into with TSCC 1809. Also, given that the development of the property that resulted in the creation of TSCC 1633 was by construction of a single phase development, there was nothing in the 1633 Disclosure Statement that would reasonably have caused a unit purchaser to expect that TSCC 1809 would be required to contribute to the costs of maintaining and repairing the Shared Laneway. As was the case with respect to the unit purchasers in Beach, the TSCC 1633 unit holders, viewed from an objective perspective, purchased their condominium units in the full knowledge and with disclosure of the rights and obligations associated with their transaction.
[Editorial Note: I don’t agree with this decision. In my view, a party with the benefit of an easement has the duty to maintain the easement; and where use of the easement lands is shared, the related costs should be fairly shared by all users (in the absence of any other cost-sharing agreement). Section 21.1 of the Condominium Act (expected to come into force in the coming months) will also hopefully avoid such results in future.]
