11/24/2016 – Jurisdiction Ontario
Part 57 published on 03/01/2017
Court determines date of default in relation to cost award under Section 134 (5) of the Condominium Act
This was a dispute between a condominium corporation and a mortgagee as to whether or not the condominium corporation had a valid lien (in priority to the mortgage) for recovery of costs owed to the condominium corporation by the owner under section 134 (5) of the Condominium Act (namely, costs related to an enforcement application against the owner).
To determine the matter, the Court had to decide when the owner had “defaulted” in relation to the required payment to the condominium corporation, because the condominium corporation’s lien rights expire if no lien is registered within three months of the default. The Court said that default occurs when payment is not made on the “due date”. The Court said that, under section 134 (5) of the Condominium Act, the “due date” is the date of issuance of the Court Order (to which section 134 applies), unless the condominium corporation extends this due date within the subsequent three-month period (i.e. before the lien rights have expired).
In this case, the condominium corporation gave no notice of extension to the owner, and registered the lien more than three months after the Court Order was issued. Therefore, the Court said that the lien was out of time.
