Part 27 published on 01/08/09
Condominium corporation successful on appeal. Developer in breach of fiduciary duties and construction obligations.
The respondent Mastercraft acquired the building in 1997 in order to convert it into a condominium. Mastercraft incorporated Eglinton Inc., Lofts Inc. (Lofts) and Lomico 188 Inc. (Lomico) in order to effect the transaction.
The condominium corporation asserted various claims against the defendant developers. The decision of the Court of Appeal included the following:
(a) Lomico is a “Declarant” for the purposes of the Condominium Act. At the time of registration of the Declaration, Lomico was the true owner of the eighth floor of the building.
(b) The heating, ventilating and air conditioning equipment was all part of the common elements. That equipment could not lawfully be separated from the remaining common elements and then leased back to the condominium corporation, at least not without the consent of the unit owners.
(c) Eglinton, Lomico and Lofts were obligated, under the terms of the agreements of purchase and sale, to carry out substantial required renovations to the parking garage.
(d) Under their purchase agreements, original purchasers were given the right to rent a parking space at the prevailing market rate. Those purchasers also acquired the right to transfer this entitlement to subsequent purchasers. This was “an easement appurtenant to each residential unit”.