15/02/2022 – Jurisdiction Yukon
Part 77 published on 01/03/2022
Court grants condominium corporation’s application for foreclosure and for an amendment to the condominium declaration and plan.
The developer of the condominium continued to own a portion of the condominium property (referred to as Bare Land Unit A). Contrary to the condominium’s declaration and plan, the developer had started construction of an apartment-style building on Bare Land Unit A. The condominium corporation obtained a Court injunction to prohibit this. The developer had then abandoned the site.
The condominium corporation then incurred significant amounts (well in excess of the value of Bare Land Unit A) to “clean up the mess that remained”. The condominium corporation had registered a lien to recover some of what was owed to it, and made application for foreclosure under that lien. The Court granted this application, noting that the Condominium Act “gives condominium corporations the right to enforce liens in the same manner as a mortgage”.
The condominium corporation also wished to amend its declaration and plan to permit construction of a four-plex (which would be consistent with the existing units of the condominium, but which would also enable the condominium corporation to recover some of its losses, through profits on the sales of the units). The condominium corporation was not able to obtain the required unanimous consents (from owners and mortgagees) to permit the desired amendments without a Court order. The Court said:
In the end, it received the consent of 50 out of 88 owners and 80 out of 88 encumbrance holders. The rest did not respond.
Therefore, the condominium corporation applied to Court (under Section 23 of the Condominium Act), seeking an order for the desired amendments. The Court granted the requested order. The Court said:
…it seems to me that permitting the building of four additional units on Bare Land Unit A would correspond with the spirit of the original declaration and plan. The proposed plan, therefore, takes into account the legislation’s intent to provide certainty to unit owners about the layout of condominium complexes.
Whitehorse Condominium Corporation No. 95 v 37724 Yukon Inc.