01/17/2017 – Jurisdiction Ontario
Part 57 published on 03/01/2017
Owners of units obligated to share in costs of joint sewage facilities
WMJO owned all of the units in three condominium projects that received the benefit of certain sewage facilities operated by MCC 229. WMJO argued that it should not be obligated to contribute to the costs to maintain and operate the sewage facilities, because those obligations were based on positive covenants which cannot be enforced against subsequent owners who have not signed the original agreement to share in the costs.
The lower Court held that – despite the principle against enforcement of positive covenants against subsequent owners – WMJO was obligated to share in the costs under principles of unjust enrichment. [See Condo Cases Across Canada, Part 51, August 2015.]
WMJO appealed. The appeal was dismissed. The Appeal Court said:
An unenforceable contract is a recognized basis for granting a remedy in unjust enrichment.
Middlesex Condominium Corporation No. 229 v. WMJO Ltd. (Appeal)