02/02/2042 – Jurisdiction Alberta
Part 85 published on 01/03/2024
Condominium corporation could no longer maintain a caveat or lien against a unit where the condominium corporation’s right to assert a claim for recovery was statute barred (due to expiry of the limitation period)
The mortgagee had sold a unit by power of sale. The condominium corporation had registered a caveat (lien) against the unit for arrears of common expenses. However, the corporation’s right to assert a Court claim for the amounts secured by the lien was barred by virtue of the applicable limitation period. The question was: Was the caveat nevertheless valid?
In a previous case (The Owners: Condominium Plan No. 9311533 v. Shui Ming Tong Foundation, 2022 ABKB 826), the Court had held that a caveat (and related rights, such as the rights to attorn rents) could be maintained even if expiry of the limitation period prevented the condominium corporation from asserting a claim in Court for recovery of the particular amounts.
However, the Court held that the above-noted decision in the Shui Ming case had “effectively been overtaken by Justice Arcand-Kootenay’s unreported (appeal) decision in Condominium Corporation 0220695 v. Scotia Mortgage Corporation (“Condo Corp 022”), which she rendered on February 9, 2023.” The Court said:
In dismissing the condominium corporation’s application, Justice Arcand-Kootenay confirmed that the (Limitations Act) applies to claims for unpaid contributions and held that “a caveat cannot save an action that is otherwise statute barred”. She further opined that it is the availability of an action that determines whether an amount remains owing to the corporation, concluding that:
“Where the caveat no longer relates to a valid claim, whether defeated by the passage of time, as the limitation period had lapsed to commence an action for the amounts owing under the caveat, the caveat ceases to meet the requirements of either section 39.2 (8) or section 39.2 (11) and thus will not remain registered as contemplated by either section 5.”
The Court accordingly held that the condominium corporation’s caveat was to be discharged.
Scotia Mortgage Corporation v. Conejero (Alberta Court of King’s Bench) 2024 ABKB 66