02/02/2024 – Jurisdiction Ontario
Part 85 published on 01/03/2024
Repair and maintenance of retaining wall shared based upon each corporation’s ownership interest in the retaining wall
There was a retaining wall located (between the two condominiums) partially on each property. About 60% of the retaining wall was on the OCCC 574 property, and about 40% of the retaining wall was on the OCCC 573 property. The retaining wall was nearing the end of its life and needed to be rebuilt. There was no registered agreement addressing responsibility for the retaining wall.
OCCC 574 argued that the cost-sharing should be 60/40 (based upon the relative portions of the retaining wall as actually located on each property). Among other things, OCCC 573 argued that it should only be responsible for 8.11% of the cost, based upon the original proposed location of the retaining wall shown on the original site plan for the development.
The Court agreed with OCCC 574. The Court said:
574 owns roughly 60% of the Wall. 573 owns roughly 40%. This suggests the obvious starting point to allocate the costs of repairing and maintaining the Wall. There is no cogent evidence that suggests a fairer way to allocate costs.
The Court also decided – on the facts of this case – that it didn’t make sense to try to allocate the cost-sharing obligations based upon the relative benefit of the retaining wall to each property. The Court said that the retaining wall clearly benefited both properties and the relative benefit to each was not a helpful or practical method to determine responsibility (in this case).
OCCC No 574 v OCCC No 573 CV-21-86635 and CV-23-91265 – Judgment (Gomery J.)