Part 38 published on 01/05/12
Court reduces condominium corporation’s lien for recovery of costs
The condominium corporation applied to Court for removal of the owner’s parrot (which violated the “no pets” provision in the corporation’s Declaration). The owner consented to the requested order (because the parrot had been previously removed from the unit) but contested the corporation’s claim for costs. The owner had offered to pay $3,000.00 for costs. The corporation did not accept the owner’s offer (claiming a considerably higher amount) and the question of costs was then argued in Court. The Court awarded the corporation $3,000.00 for costs. The corporation then sought to recover (by lien) the corporation’s total actual costs (which were in excess of $20,000.00) – relying upon Section 134 (5) of the Condominium Act, 1998. This resulted in a further Court hearing to determine the total amount owed by the owner to the corporation under the corporation’s lien. The Court held that the total amount owed by the owner was $6,500.00, which the Court felt was the amount that could be “properly charged” by the corporation’s lawyers in obtaining the original Court order.
The Court awarded the owner $5,000.00 costs in relation to the second Court hearing (to determine the total amount owed under the lien). The Court said: “The Corporation has to pay these costs because its claim was unreasonable.”
[Editorial Note: According to section 134 (5), a condominium corporation is entitled to recover (by lien) 100% of its actual costs in obtaining a Court order against an owner or occupier under Section 134 – provided the Court awards any amount of damages or costs to the condominium corporation. However, the total actual costs must be “proper” or in other words must be reasonable. I wonder: In order to avoid a second Court hearing on the question of the reasonableness of the condominium corporation’s total costs, would it make sense to ask the Court, at the initial hearing, to also determine the corporation’s rights under Section 134 (5)?]