Board Members Behaving Badly Results in Personal Liability

Part 1 of 2

Post by: Khiam Nong

Recent decisions of the Ontario Superior Court of Justice demonstrate that members of Boards of Directors of condominium corporations who do not carry out their duties in a good faith manner risk personal liability as they will not be afforded the protection of the indemnification provisions of the Condominium Act, 1998 (the “Act”).  The Boards of two condominium corporations have learned this lesson the hard way after being ordered to pay thousands of dollars out of their own pockets.  The former members of one Board were ordered to pay legal fees after unnecessarily bringing court proceedings against unit owners.  The members of another Board were ordered to pay for the costs of construction necessary to comply with a court order.

Middlesex Condominium Corporation No. 232 v. Middlesex Condominium Corporation No. 232 (Owners and Mortgagees of)

Middlesex Condominium Corporation No. 232 (“MCC”) required extensive repairs to the building envelope.  In 2011, the then Board obtained a quote from one contractor only, who eventually determined that repairs could be made for $755,000.  At the time, MCC’s reserve fund had only $143,000.  The Board prepared a “borrowing” bylaw whereby it proposed to borrow the balance of the funds required for the repairs.  The Board planned on putting the bylaw to a vote at the annual general meeting (“AGM”).

Prior to the AGM, a group of unit owners requested copies of documents relevant to the repairs, requested that the Board suspend negotiations with the contractor to allow them time to review the documentation and requested that they be allowed to post a notice regarding the plans.

The Board advised, through its lawyer, that it would allow supervised access to some documents but not all, that it would not suspend negotiations with the contractor and that it would not engage in a consultation process.

Thereafter, the unit owners requisitioned an owners’ meeting pursuant to s. 46 of the Act, to be held concurrently with the AGM.  They moved to defer the vote on the bylaw and to replace the existing Board with a new Board.

At the AGM, the proposed bylaw was defeated.  Before the election and unit owners’ requisition to remove the Board could be heard, the Board ended the meeting.

The Board then brought an application in the Superior Court pursuant to s. 131 of the Act requesting that an administrator be appointed and a subsequent motion for an injunction to prevent the unit owners’ requisition from being heard prior to the appointment of an administrator.

The injunction motion was heard first by Mr. Justice Bryant, who outright rejected the Board’s submissions that the unit owners were frustrating the work of the Board, and that allowing the requisition meeting would create instability and jeopardize the safety of the building occupants.  He found that the sole purpose of the Board’s application was to prevent the unit owners from exercising their statutory right to have the Board removed, which motive is clearly inappropriate and inconsistent with the Act.

After the injunction hearing, the unit owners held a meeting and a new Board was elected.  The former Board refused to accept the validity of the meeting and instructed its lawyers to proceed with the application to appoint an administrator.

That application was heard by Mr. Justice Carey.  While the Board materials characterized MCC as “ungovernable” and “stumbling into the ‘abyss’ in ‘chaos,’” Justice Carey stated that the language used in the Board’s materials was “exaggerated” and “alarmist.”  He confirmed that the unit owners’ actions in the circumstances were reasonable, considering the behaviour of the Board.

Justice Carey held that the election of the new Board was valid and that there was no reason why an administrator should be appointed.  He stated that s. 131 was designed as a last resort and that it was “not intended to be used to allow a board which has lost the confidence of the majority of owners to get their way regardless of the democratic will of the owners.”

Both judges released their decisions on the costs of both hearings in February of this year.  Both rulings demonstrated the courts’ displeasure at the board members’ abuse of power and refusal to carry out the will of the majority of unit owners.

Mr. Justice Carey described the former Board’s behaviour as “deliberate, egregious and requir[ing] sanction.”  He ordered the former Board members to pay $21,300 in costs.

Mr. Justice Bryant held that the injunction application was unnecessary, tenuous, without merit and improper as it was an attempt to deprive the unit holders of their statutory right to remove a board with which it was dissatisfied.  All of this behaviour was found to be in contravention of the Board’s duty to act in good faith.  In the result, the five members of the former Board were ordered to pay $15,000 in costs.

As noted by Mr. Justice Bryant, had costs been awarded against the former Board instead of against the individual directors, it would have produced a “perverse result” as a condominium board acts on behalf of the Corporation.  Awarding costs against the Corporation would have unfairly prejudiced individual unit owners as the structure of condominium corporations requires that unit owners bear a corporation’s costs.

Boily v. Carleton Condominium Corporation 145

In a similar, and maybe more baffling saga, the Board of Carleton Condominium Corporation No. 145 (“CCC”) decided not only to disregard the will of the unit owners, but also the will of the Court.  In so doing, the Board members were chastised quite severely by the Court for their behaviour.

In this case, the condominium complex required extensive repairs to the garage, which repairs affected the courtyard landscaping of CCC.  The Board advised the owners that it intended to put in place a landscape design that differed from that in place prior to the garage repairs.  Some owners were of the view that such modification required approval of 66 2/3% of the ownership.  The Board was of the view that the modification was maintenance, which did not require a vote.

A group of owners requisitioned a special owners’ meeting so that a vote could be held.  The Board refused to provide a list of registered owners which was required to organize the meeting.  The Board then called its own special owners’ meeting to submit its proposed landscape configuration and put it to a simple majority vote.  The Board also advised that it would commence demolition the following day regardless of the outcome of the vote.

The owners brought an urgent motion for an injunction to stop the Board from holding its meeting and to stop any modifications to the courtyard landscape until further order, which motion was granted.  The issue of whether the modification was a substantial change that required 66 2/3% approval was adjourned to a later date.

Thereafter, the parties reached a settlement whereby the owners’ meeting was permitted to proceed.  The Board’s proposed modification would be put to a vote requiring 66 2/3% approval.  The settlement was reflected in executed Minutes of Settlement.

The vote took place and the proposed modification failed to achieve the requisite level of owner approval.

The Board then took the position that there was no settlement agreement and sought to continue with the application in court.  The owners responded by bringing a motion to enforce the Minutes of Settlement.

Mr. Justice Beaudoin found that there was indeed an agreement in place and that it should be enforced.  He ordered that the courtyard landscaping be reinstated to its former design and advised the parties that they should seek further direction from him should they require it.

In spite of the Court’s clear direction, the Board went ahead and reinstated the landscaping in accordance with its own design, in complete disregard of the will of the other unit owners.  The unit owners brought a contempt motion.  They asked that the Court: (i) find the Board members in contempt of court; (ii) order the Board members to comply with court’s order; (iii) order the Board members to reinstate the courtyard landscaping to its original configuration; (iv) order that costs of additional work be borne by the Board members personally; and (v) order that costs of the motion be borne by the Board members personally.

Mr. Justice Beaudoin found that in substituting their own landscaping design, the Board members clearly and unequivocally breached his previous order, and that such breach was intentional.  He stated the they “acted neither honestly and in good faith, nor as a reasonably prudent person.”

In considering the issue of costs, he stated that it was necessary to hold the Board members accountable for their actions, as a failure to do so would result in all other unit owners paying for the restoration of the courtyard landscaping through common elements fees, which would be unfair in the circumstances.

The individual Board members were ordered to personally bear the additional costs, including labour and material, of reinstating the original landscape configuration.  While the issue was not addressed in the decision, it is likely that the restoration work will amount to a significant personal cost for each Board member – a high price to pay for a preferred landscape design.

Final Comments

Board members must always remember that they have been elected to serve the will of the unit owners.  Board members should not take such a task lightly and must ensure that they understand the remedies available to dissatisfied unit owners and the willingness of courts to enforce those remedies against Boards that do not carry out their duties in good faith.

 

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HST REBATES ON NEW HOUSING (INCLUDING REBATES FOR RENTALS)

Post by: Khiam Nong

Builders who sell new or substantially renovated housing need to be aware of the HST New Housing Rebate (“NHR”).  The NHR can be assigned to a builder from home purchasers (“Purchasers”) on the unit/home sale closing.

Builders and Purchasers of new homes also need to be aware of the fact there is a rebate of HST available to the landlord of a new property (including a single home or residential condominium unit) if the first occupant of the property is a tenant.  This rebate is referred to as the New Residential Rental Property Rebate (“NRRP Rebate”).

Purchasers who rent out a new home so that the first occupant of the new home is a tenant are entitled to the NRRP Rebate but cannot obtain the NRRP Rebate from the builder.  Such Purchasers must apply for the NRRP Rebate directly after closing.  To find out how and where to file the NRRP Rebate application, see page 31 of the Canada Revenue Agency (“CRA”) publication found here.

In markets with the potential for Purchasers to acquire property for investment purposes, builders should be aware of the existence of the NRRP Rebate so they can advise their Purchasers of the existence of the rebate.  The obligation for a Purchaser to pay the full 13% HST without being aware of the NRRP Rebate can discourage a Purchaser from completing the purchase.

Further, awareness of the NRRP Rebate may also deter misrepresentation by Purchasers to the CRA.

Of late, we have noticed that, in order to avoid being responsible to their builder for lost NHR, some Purchasers have been dishonest about their intentions to rent out a property and misrepresented that they intend to occupy the property as their primary place of residence.

If Purchasers are made aware that they can obtain the NRRP Rebate on new homes that they lease out to tenants, we suspect some of this dishonesty will be dissuaded.

New Housing Rebate

The NHR allows Purchasers to recover some of the federal portion of the HST, which is 5% in Ontario.  For homes with a base price (exclusive of any HST or rebates) up to $350,000, Purchasers may recover a rebate of 36% of the 5% federal portion.  The allowable rebate declines on a sliding scale when the purchase price is between $350,000 to $450,000.  If the base price is or exceeds $450,000, the federal portion of the NHR is not available.

Regarding the remaining 8% of the HST, which is the provincial portion, Purchasers may recover 75% of the 8% provincial portion up to a maximum of $24,000.  Unlike the federal portion, the amount of the provincial portion of the NHR does not slowly decline once the purchase price reaches $350,000.00.  The provincial portion of the NHR simply does not apply to any purchase price in excess of $400,00.00, thereby limiting the amount of the provincial portion of the NHR to $24,000.00.

For the purposes of the NHR, the term “builder” generally includes a person in the business of constructing or substantially renovating houses for sale, but may also include:

(i)                 a manufacturer or vendor of a new mobile home or floating home;

(ii)               a person who buys a previously unoccupied new house for resale;

(iii)             a person who acquires an interest in a house while the house is under construction or substantial renovation and completes or engages another person to complete the construction or substantial renovation; or

(iv)              a person who has converted a non-residential property into a house without substantially renovating the property. [1]

A “builder” for the purposes of the rebate acquires, builds or substantially renovates housing (or hires someone else to do so) as its trade.

An individual who buys, builds or renovates a house to use as his or her primary residence does not fit the definition of builder, however, such an individual is still entitled to the NHR if he or she meets all of the usual criteria.

Purchasers may assign the NHR to their builder.  The builder may apply for the rebate on the Purchasers’ behalf.

A builder may pay the total amount of Purchasers’ NHR directly to them or credit that amount on the purchase price of the house.  It is highly unusual to pay the NHR directly to Purchasers.

A builder who chooses to credit Purchasers with the amount of the NHR must send in a fully completed Form GST190 and all applicable provincial rebate schedules.

The following is a list of additional conditions Purchasers must meet to qualify for the NHR:

(a)               the Purchasers bought a new or substantially renovated house from a builder and HST is due on closing;

(b)               the builder sold the Purchasers the house and related land on which the house is located under the same written agreement of purchase and sale;

(c)                when the Purchasers signed the agreement of purchase and sale, it was intended to be the primary place of residence for the Purchasers or their relations;

(d)               ownership of the house is transferred to the Purchasers after construction or substantial renovation is completed;

(e)               no one occupied the house before possession being given to the Purchasers; and

(f)                 the Purchasers or their relations are actually the first occupants of the house after construction or substantial renovation.

One of the main criterion for eligibility for the NHR is that Purchasers, or their relations (meaning immediate family members related by blood, marriage, common-law partnership or adoption within the meaning of the Income Tax Act), must use the house/unit as their primary place of residence.  The factors the CRA considers when determining whether a house is an individual’s primary place of residence include:

○                    whether the individual considers the house as their main residence;

○                    the time the individual has lived in the house; and

○                    the designation of that address on personal and public records.[2]

Purchasers who fail to meet all eligibility requirements should not be entitled to the NHR and if the NHR is obtained, can be required to repay the rebate.

New Residential Rental Property Rebate

The NRRP Rebate is obtained by Purchasers making an application as noted above.  The NRRP Rebate cannot be credited to the Purchasers on closing by the builder.

The application for the NRRP Rebate must be filed within two (2) years after the house purchase closes.

The amount of NHR is calculated on the same basis as the NRRP Rebate.  Generally the rules for eligibility are the same as those considered in respect of the NHR.

It is important to note that Purchasers will have to repay the NRRP Rebate if they should sell their home within one (1) year after it is first occupied as a primary place of residence after construction, unless the home is sold or leased to an individual who will occupy the home as their primary place of residence.

The foregoing is a summary of the HST rebates available when selling or buying a new or substantially renovated home/unit.  For more detailed information on the NHR and the NRRP Rebate, see the following CRA publications or talk to your tax advisor.

http://www.cra-arc.gc.ca/E/pub/gp/rc4028/rc4028-12e.pdf

http://www.cra-arc.gc.ca/E/pub/gp/rc4231/rc4231-12e.pdf



[1] RC4028 GST/HST New Housing Rebate, page 6, www.cra.gc.ca, February 26, 2013.

[2] Ibid.

Don’t Wait Too Long – Tarion, Bulletin 19R and New Condominiums

Post by: Craig Robson

We received a call recently from a prospective client who was interested in developing a condominium project.  The conversation went something like this:

Caller: – “We are looking at doing a 6 storey apartment condominium.”

Lawyer – “What stage are you at?”

Caller – “4th floor is being worked on now.”

Lawyer –“Are you looking to sell the units or rent them?”

Caller  “Rent.”

Lawyer – “Good.”

Our response was based on the fact that if the caller was intending to sell new residential units out of the project, the project would be subject to the Ontario New Home Warranties Plan Act (“ONHWPA”) jurisdiction.  The entity responsible for administering the ONHWPA is the Tarion Warranty Corporation (“Tarion”).

If the caller was planning on selling new residential units, the project would then likely be subject to Bulletin19R “Condominium Projects: Design and Field Review Reporting” (“19R”).  19R came into effect on July 1, 2010 (replacing a similar long standing bulletin).

19R applies to vendors and builders of proposed condominiums that have both Part 9 and Part 3 Ontario Building Code (“OBC”) construction requirements and proposed condominiums that have only Part 3 OBC construction requirements.

For most of us who are not schooled in interpreting the OBC it is not always clear when 19R will apply.  Its applicability can sometimes be a surprise.  The basic assumption by some is that it only applies to “high rises”.  The true test of applicability is what part or parts of the OBC apply.

The question of what part(s) of the OBC apply to a proposed residential project should be put to the project engineer or architect at the outset of any such project if there is any thought of selling units.  This question should be posed well before any construction gets underway if there is any chance of the project being subject to ONHWPA.  Tarion asks the question in its application form but we have seen those applications prepared from time to time without careful consideration (called guessing) of what part of the OBC applies.

For the caller referred to above, she would have had a major issue if her intention was to sell residential units out of the project.

Her first issue would be that she should have enrolled the project in ONHWPA before construction started.  That in itself is an exercise of some length.

The bigger problem is with respect to 19R.  19R requires a lot of paperwork, submissions and professional reviews starting before and during all aspects of construction.  The caller in the above example may have simply been unable to comply with 19R because her project was too far along in the construction process to be able to comply with 19R’s preconstruction and submission requirements that are required before and in the early stages of construction.

19R adds a lot of red tape and cost to a project but cannot be ignored with respect to projects to which it applies.  Not being able to comply with 19R requirements may preclude a project from being brought into ONHWPA registration/enrolment.  If a project does not have this registration/enrolment, the builder is not allowed to sell the new previously unoccupied residential units in the project.

The Take Away

  1.  If there is any chance that there will be sales of new residential units in a new project, contact Tarion immediately and at the very least find out what the process is to comply with their requirements.
  2. If sales of new residential units are intended:
    • get the process underway with Tarion well in advance of construction commencement.  It can take a while; and
    • determine with certainty whether 19R applies well before any construction starts.  If 19R applies, make sure all relevant members of your project team know what is required of them – and then make sure they do it.  A qualified member of your project team should be charged with coordinating all of the 19R requirements.

Beware the Single Pipe

Post by: Meghan MacDonald

Developers and builders need to be aware of section 7.1.5.4. of the Building Code if they’re considering building multiple buildings on one property and only one servicing pipe services the property.  This becomes especially crucial if the property is severed into two or more parcels or if there is any consideration given to having separate condominium plans on the property.

Section 7.1.5.4. provides:

 7.1.5.4. Separate Services

(1) Except as provided in Sentences (2) and (3), piping in any building shall be connected to the public services separately from piping of any other building.

(2) An ancillary building on the same property as the main building may be served by the same service.

(3) Water service pipes or building sewers serving buildings located on the same property may connect into a private water supply or a private sewer conforming to Article 7.1.5.5.

(4) No plumbing serving a dwelling unit shall be installed in or under another unit of the building unless the piping is located in a tunnel, pipe corridor, common basement or parking garage, so that the piping is accessible for servicing and maintenance throughout its length without encroachment on any private living space, but this Sentence does not prevent plumbing serving a unit located above another unit from being installed in or under the lower unit. (underline added)

 At first glance it doesn’t seem like there is an issue for developers/builders constructing multiple buildings on one property because according to subsection 7.1.5.4.(2), ancillary buildings on the same property can share one servicing pipe.

However, consider the following scenario:

  • a developer decides to build two separate apartment buildings on one parcel of land;
  • both buildings will be serviced by a single servicing pipe;
  • halfway through construction of the second building the developer decides it wants to convey title to one of the buildings to a related company.  The developer severs one of the buildings from the property in order to have the apartment buildings on two separate parcels of land.

The developer now has a problem.  Section 7.1.5.4. only allows multiple buildings to share a single servicing pipe if they are located on the same property.

It doesn’t matter that it was acceptable for both buildings to share the single servicing pipe prior to severance.  Once the parcel of land is severed, a violation of the Building Code exists and a municipality could require the installation of another servicing pipe before it will grant any approvals or permits that may be necessary for completion of the properties.

The same issue arises if for any reason two or more condominium plans are proposed for the property.

Installation of a servicing pipe after site servicing is otherwise completed can be a significant expense.

There is one way the developer can avoid having to install a second servicing pipe.  The solution is found in Appendix A to the Compendium to the Building Code:

A-7.1.5.4.(1) Separate Services

Building sewers and water service piping serving buildings that are not located within the same property may be interconnected if the owners of the properties and the municipality enter into an agreement that is registered against the title to which it applies.

There are two issues with this solution:

1. The municipality is not required to enter into this type of agreement because Appendix A is explanatory only and not part of the Building Code requirements; and

2. If the municipality does agree to enter into this type of agreement it will take time and cost money to create an agreement that the municipality will agree to sign.

Bottom Line: be aware of this single servicing pipe issue when planning construction of multiple buildings on one parcel of land because it could add complications and additional costs to a project down the road if the property is ever severed or if separate condominium plans are proposed for the property.

Developers Beware: Don’t Forget Your Critical Dates – Or Your Deal May be Dead!

Part 3 – The POTL Factor*

Post by: Meghan MacDonald

This is the final post in the series on the potential issues surrounding the Critical Dates in the Tarion Delayed Occupancy/Closing Forms.

Part 2 discussed the importance of making sure that Critical Dates are filled in on the Statement of Critical Dates** in all circumstances.  This includes situations where there is no occupancy period because the unit being sold is located in a condominium that has already been registered.

Part 3 expands on the confusion around using Tarion’s Occupancy Forms for sales of units in registered condominiums and the obligation to use Tarion’s Limited Use Freehold Occupancy Forms for sale agreements with respect to Parcels of Tied Land to Common Elements Condominium plans.

A Parcel of Tied Land is not a condominium unit.  A Parcel of Tied Land is a freehold parcel of land that is “tied” to a Common Elements Condominium plan.  A Common Elements Condominium plan consists only of common elements (for example, a shared roadway, park, recreation center, etc.).  The purpose of the Common Elements Condominium structure is to provide a mechanism for orderly governance, maintenance and repair of shared common elements and for the orderly collection of the costs on account thereof from the owners of the Parcels of Tied Land.

In almost all cases the Common Elements Condominium plan is registered long before the sale of the freehold homes that are tied to the condominium are constructed or ready for occupancy.

The sales of the homes that are Parcels of Tied Land to the Common Elements Condominium plan are typically closed as regular home sales with no period of occupancy.  Occupancy is only provided at the time of the sale closing, not before.

It was therefore surprising when, earlier this year, Tarion introduced new Limited Use Freehold Occupancy Forms designed specifically for agreements of purchase and sale for Parcel of Tied Land.  The accompanying regulations require the use of these Forms for Parcels of Tied Land.  The use is mandatory.  The regulations do not contemplate using a Freehold Closing Form if there is no period of occupancy contemplated by the sale agreement.  This appears to be based on the misguided assumption that periods of pre-closing occupancy are routine in the sale of Parcels of Tied Land.

Prior to the recent amendments to the regulations, Freehold Closing Forms were being used for Parcels of Tied Land.  This made sense as the Parcels of Tied Land were almost always sold in the ordinary course without any period of occupancy before sale closing.

Even though occupancy is a non-issue with virtually all Parcels of Tied Land and the inclination may be to continue to use the Freehold Closing Forms because there is no occupancy period for these homes, the appropriate Limited Use Freehold Occupancy Form must be attached to every agreement of purchase and sale for a Parcel of Tied Land and the Critical Dates must be filled out (for the reasons outlined in Part 2).  This must be done even though the Limited Use Freehold Occupancy Forms don’t really apply to the reality of the sales of Parcels of Tied Land because the Limited Use Freehold Occupancy Forms deal with occupancy instead of closing.

If the appropriate Limited Use Freehold Occupancy Form is not attached with the Critical Dates filled out, the Purchaser can kill the deal.

It is also worth mentioning that Tarion included a new Schedule C to the Limited Use Freehold Occupancy Forms that sets out the terms that will govern the occupancy period.  The inclusion of Schedule C in the Parcel of Tied Land Forms seems odd for two reasons:

  1. as previously mentioned, most Parcels of Tied Land don’t have occupancy periods; and
  2. Schedule C wasn’t included in the updated Condominium Occupancy Forms.  It seems illogical that this Schedule was added to the Forms for Parcels of Tied Land where there is rarely any period of pre-closing occupancy, but not added to the Condominium Delayed Occupancy Forms where occupancy prior to closing is fairly routine.

Registered Condominium Units

Once a condominium is registered most agreements of purchase and sale do not require pre closing occupancy as buyers can move straight to closing.  However, as the agreement of purchase and sale is still with respect to a condominium unit the only choices for Tarion Schedules are the Condominium Delayed Occupancy Forms.  In our view, Tarion should have allowed the use of the Freehold Delayed Closing Form for registered condominium units and Parcels of Tied Land where the agreement of purchase and sale does not contemplate any period of occupancy.  However, they have failed to do so.  Hopefully this is remedied.

Recommendation

Since the Common Elements Condominium plan will in most cases likely already be registered at the time the sale agreement for a Parcel of Tied Land is signed, it is suggested the builder simply fill in the home’s closing date for all Critical Dates and put an outside occupancy date as far past that as possible because if you miss that date the deal will be terminated.  In the unlikely event a builder is contemplating a period of occupancy for a Parcel of Tied Land, the appropriate Limited Use Freehold Occupancy Form needs to be filled out on the same basis as the Condominium Occupancy Forms when choosing dates.  However, as noted, this does not happen very often.

With respect to sale agreements for registered condominium units where no period of pre-closing occupancy is contemplated we suggest the same practice in completing the Condominium Occupancy Form.

Bottom Line: never underestimate the importance of attaching the correct Tarion Occupancy/Closing Form to agreements of purchase and sale and filling in the Critical Dates on the Statement of Critical Dates even if the Form speaks to occupancy when no occupancy is contemplated.  If the regulations call for an occupancy form even though no occupancy is contemplated the builder must comply and use the occupancy form.  If done incorrectly your deals could be in jeopardy.

* Part 3 of a 3 part series on the potential issues surrounding Tarion’s Critical Dates.

** The Statement of Critical Dates is part of the Tarion Delayed Occupancy/Closing Warranty Form that must be attached to the agreement of purchase and sale.

 

Developers Beware: Don’t Forget Your Critical Dates – Or Your Deal May be Dead!

Part 2 – Leave No Blanks Behind*

Post by: Meghan MacDonald

This post continues the discussion of the potential issues surrounding the Critical Dates in the Tarion Delayed Occupancy/Closing Warranty Forms.

Part 1 discussed the importance of making sure that Vendor’s agreements of purchase and sale for new housing do not have any provisions that permit the Vendor to make changes to Critical Dates or automatically extend those dates contrary to the provisions in the Tarion Schedule.

It is equally important to make sure that the Critical Dates are filled out in the Statement of Critical Dates.**  The Tarion Forms state that if the Critical Dates are not filled out, the Purchaser can terminate the deal:

If: calendar dates for the applicable Critical Dates are not inserted in the Statement of Critical Dates; or if any date for Occupancy (or Closing for freehold) is expressed in the Purchase Agreement or in any other document to be subject to change depending on the happening of an event (other than as permitted in this Addendum), then the Purchaser may terminate the Purchase Agreement by written notice to the Vendor. (emphasis added)

It may seem obvious that Critical Dates always need to be filled out in the Tarion Forms, but consider the following situation that could occur with a home on a Parcel of Tied Land to a Common Elements Condominium:

  • Vendor creates a Common Elements Condominium with single homes as Parcels of Tied Land to the Common Elements Condominium;
  • The condominium is registered and there is no occupancy period for the homes, just a regular closing date;
  • The Vendor does not fill out the Critical Dates on the Tarion Form because there is no occupancy period;
  • A Purchaser of one of the homes decides she doesn’t want to close the deal and uses the Vendor’s failure to fill in the Critical Dates on the Tarion Form as justification for terminating the deal.

The Tarion Forms do not account for situations where there is no occupancy period for registered condominium units.

There is rarely an occupancy period in agreements of purchase and sale with respect to registered and completed condominium units, yet this registered unit is still a condominium unit and the Vendor must use either the Tentative or Firm Condominium Occupancy Schedule.

It is not clear why there is no Tarion “Firm or Tentative Closing Date Schedule” similar to the form used for a freehold  home for registered condominium units which have no occupancy.

Neither is it clear why the Tarion legislation requires the use of an occupancy schedule for all Parcels of Tied Land to Common Elements Condominiums.  Most Parcels of Tied Land to a Common Elements Condominium are freehold and don’t have occupancy provisions because the Common Elements Condominium was registered long before home completion.

Regardless, if the Vendor of a  new condominium unit that is not going to have an occupancy period or a Parcel of Tied Land which is not going to have an occupancy period fails to have the Statement of Critical Dates filled out a Purchaser can kill the deal for failure to include those dates.  At least that’s what the required schedules say.

Therefore it is essential in these cases where there is to be no occupancy of a registered condominium unit or Parcel of Tied land to simply fill in the home’s closing date for all Critical Dates and put an outside occupancy date as far past that as possible because if you miss that date the deal is dead too.

Bottom Line: never forget to fill in all of the dates on the Statement of Critical Dates even if there is no occupancy period, otherwise you run the risk of the purchaser terminating the agreement.

* Part 2 of a 3 part series on the potential issues surrounding Tarion’s Critical Dates.

** The Statement of Critical Dates is part of the Tarion Delayed Occupancy/Closing Warranty Form which must be attached to all agreements of purchase and sale for newly built condominium units and freehold homes.

Developers Beware: Don’t Forget Your Critical Dates – Or Your Deal May be Dead!

Part 1 – Consistency is Key*

Meghan MacDonald

When completing agreements of purchase and sale for homes on newly built parcels of tied land, condominium units and freehold homes, do not overlook the importance of this section of Tarion’s Delayed Occupancy/Closing Warranty Forms:

If: calendar dates for the applicable Critical Dates are not inserted in the Statement of Critical Dates**; or if any date for Occupancy (or Closing for freehold) is expressed in the Purchase Agreement or in any other document to be subject to change depending on the happening of an event (other than as permitted in this Addendum), then the Purchaser may terminate the Purchase Agreement by written notice to the Vendor. (emphasis added)

Many agreements of purchase and sale contain clauses that allow the Vendor to extend the occupancy/closing date due to the actions or omissions of the Purchaser.

For example, many agreements state that the Vendor has the right to extend the closing/occupancy date if the Purchaser has not chosen extras (e.g. a walkout basement, custom cabinetry or a sunroom addition) or colours for his/her home by a certain date.

If these clauses in the agreement of purchase and sale do not conform to the Tarion process for extending Critical Dates then, according to the Tarion section above, the Purchaser can kill the deal.

Bottom line: all home vendors should go through their agreements of purchase and sale and all related documents to make sure there are no clauses that permit the Vendor to extend the occupancy or closing date except in strict accordance with the provisions in the Tarion Schedule, otherwise the Vendor runs the risk of having an unenforceable agreement.

* Part 1 of a 3 part series on the potential issues surrounding Tarion’s Critical Dates.

** The Statement of Critical Dates is part of the Tarion Delayed Occupancy/Closing Warranty Form that must be attached to the agreement of purchase and sale.

What About the Initial Registration?

Post by: Meghan MacDonald

Developers take note: Tarion has recently overhauled its Delayed Occupancy Warranty Forms and it could cause some headaches for phased condominium projects.  Tarion requires Vendors to append these Forms to agreements of purchase and sale of newly constructed homes.  Some of the major changes in the new Forms include:

  • new Forms for parcels of tied land attached to common element condominiums;
  • a new Schedule B in all of the Forms that lists all of the closing adjustments; and
  • inclusion of an arbitration provision for resolution of disputes between a Vendor and Purchaser.

How Tarion has decided to implement these new Forms is where the headache for phased condominium developers lies.  Regulation 165-08 of the Ontario New Home Warranties Plan Act governs the implementation of the Delayed Occupancy Warranty Forms.  Section 8(1) of the Regulation states that, subject to exceptions, any agreements of purchase and sale that are entered into on or after October 1, 2012 must use the new Forms.  Sections 8(3) to 8(5) set out the exceptions.  Section 8(5) is the exception that applies to phased condominiums.  Section 8(5) states:

If, before October 1, 2012, parties have entered into one or more arm’s length purchase agreements in good faith for condominium homes in a phase as defined in subsection 145 (3) of the Condominium Act, 1998, other than in a vacant land condominium corporation, then section 6 applies to all purchase agreements for all condominium homes in the phase and this section does not apply to those purchase agreements.

What section 8(5) says is that if a developer has entered into at least one agreement of purchase and sale for a home in a phase of a phased condominium before October 1, 2012, then all agreements of purchase and sale for homes in that phase sold after October 1, 2012 can use the old Forms.  On a cursory reading, section 8(5) makes perfect sense.  It appears to create consistency in the agreement of purchase and sale for all homes in the same phased development by allowing the same Form to be used for all of them.

The issue with section 8(5), however, becomes apparent once you try to apply it after reading Section 145 (3) of the Condominium Act, 1998.

Section 8(5) of the Regulation refers to “condominium homes in a phase as defined in subsection 145(3) of the Condominium Act, 1998.”  Section 145(3) of the Condominium Act, 1998 states:

In this Part,

“phase” means the additional units and common elements in a phased condominium corporation that are created in accordance with this Part upon the registration of an amendment to both the declaration and description.

Section 145(3) of the Condominium Act, 1998 does not mention the initial registration in a phased condominium project.  The initial registration in a phased condominium (i.e. the first units built and offered for sale and identified in the registered condominium declaration prior to the first amendment) is not a phase of the condominium.  A phase in a phased condominium is any group of units brought into the condominium by amendment to the declaration after the registration of the condominium declaration which included the first units to be registered in the condominium.

This means that, due to the way section 8(5) was drafted, the exception that permits the use of the old Forms if there is a pre October 2012 sale doesn’t apply to the initial registration of a phased condominium project.

Neither is any future phase of the condominium exempt from using the new Forms if there are no pre October 2012 sales in such phase even if there are pre October 2012 sales in a prior phase or the initial registration of the condominium.

This could lead to situations where the new Forms must be used for sales in the initial registration and one or more of the phases that don’t have pre October 2012 sales while the old Forms can be used in other phases that had such sales.

The foregoing may have been intentional or it may be a drafting oversight in the Regulation, but it has the potential to cause issues.  Take the following situation as an example:

– A developer has a phased condominium townhouse project consisting of an initial registration and two phases.  The agreements of purchase and sale for some (but not all) of the homes in the initial registration were entered into before October 1, 2012.  The agreements of purchase and sale for some (but not all) of the homes in the first phase were also entered into before October 1, 2012.  None of the homes in the second phase were sold before October 1, 2012.

– On November 1, 2012, the developer enters into three agreements of purchase and sale, one for a home in each of the two phases and one for a home in the initial registration.

– The agreement of purchase and sale for the home in the first phase will be able to use the old Form pursuant to section 8(5) of the Regulation because at least one agreement of purchase and sale for that phase was entered into before October 1, 2012.

– However, the agreement of purchase and sale for the home in the second phase will use the new Form because none of the homes in that phase had been sold prior to October 1, 2012.

– The agreement of purchase and sale for the home in the initial registration will have to use the new Form even though some of the homes in the initial registration were sold before October 1, 2012 because section 8(5) of the Regulation doesn’t include the initial registration.

The above example illustrates that the inconsistency of section 8(5).  This will likely cause confusion for phased condominium developers and their sales teams.  The net result may be that builders should switch to the new Forms for all post October 2012 sales in a phased condominium even if there are existing sales in place at such time.

Changes to Tarion’s Major Structural Defects Framework Impact Condominium Builders and Owners

Post by: Meghan MacDonald

Tarion, the company responsible for administering the Ontario New Home Warranties Protection Act, has recently made changes to its major structural defects (“MSD”) warranty framework.  These changes are designed to provide new home and condominium buyers with additional protection for MSD.  The effects of these changes may include increased costs for builders due to the alteration of builder liability for MSD and a greater number of MSD claims as a result of the expanded definition of MSD.

This new framework will apply to new condominium projects where the first arm’s length purchase and sale agreement is entered into on or after July 1, 2012.

Builder Accountability for MSD

Tarion has expanded builder accountability for MSD claims in years 3 to 7 of the warranty period.  During this period, if a valid MSD claim is made, the builder will have to elect to either: i) take full responsibility for the MSD or ii) reimburse Tarion with a co-share payment.  This election will require builders to asses each option in order to minimize their financial exposure.  Under the new framework, builders will continue to have full responsibility for MSD claims made in years 1 and 2 of the warranty period.

For condominiums, the co-share payment for units and common elements are calculated differently.

The co-share payment for condominium dwelling units is calculated on a per unit basis as the lesser of:

  1. Tarion’s cost of resolving the MSD claim(s);
  2. 5% of the sale price of the unit; and
  3. $300,000.

For common elements, the co-share payment is calculated on a per project basis as being the lesser of:

  1. Tarion’s cost of resolving the MSD claim(s);
  2. 5% of the aggregate sale price of all the units in the condominium project; and
  3. $750,000.

The co-share payment options (i) and (ii) above will likely have a similar effect on all builders, but the monetary caps could end up having a disproportionate effect on smaller builders.  Compare the financial impact of a 1 million dollar MSD claim against the following two builders:

  1. A large builder of a high rise condominium with an aggregate sale price of 50 million dollars.  This builder elects to reimburse Tarion for a co-share payment rather than take full responsibility because the co-share payment option is cheaper.  For that builder, the lesser of the three co-share payment options is $750,000.
  2. A smaller builder of a townhouse complex with an aggregate sale price of 10 million dollars.  This  builder also elects the co-share payment option, but for this builder, the lesser co-share payment option is 5% (10 million x 5% = $500,000) of the aggregate price of all the units.

Although the small builder ends up paying $250,000 less than the large builder for the same 1 million dollar claim, the smaller builder’s MSD exposure is greater because the small builder’s co-share payment represents 5% of the aggregate sale price of the units, whereas the large builder’s exposure is only 2%.  The $750,000 co-share payment cap will benefit builders whose projects are worth over 15 million dollars because the $750,000 cap will always be less than 5% of the aggregate purchase price of the units.

Builders also need to be aware that, going forward, Tarion will report any MSD warranty claims that are not fully resolved by builders on its website.  However, a builder may not be subject to co-payment or disclosure requirements if the defect complained of is beyond builder control and is an industry wide issue.  Tarion’s Board of Directors will deal with those situations on a case by case basis.

Expanded Definition of MSD

Tarion has also expanded the definition of MSD.  The definition now comprises three separate tests for determining whether an MSD claim is valid:

i) Failure Test – defects in work or materials that result in the “failure of a structural load-bearing element of the building.” The test is a stringent one because it contemplates only actual structural failure.

ii) Function Test –a defect in work or materials that “materially and adversely affects the ability of a structural load-bearing element of the building to carry, bear and resist applicable structural loads for the usual and ordinary service life of the element”. This test is focused on the function of a building element.

iii) Use Test – a defect in work or materials that “materially and adversely affects the use of a significant portion of the building for usual and ordinary purposes of a residential dwelling and having regard to any specific use provisions set out in the purchase agreement for the home.” This test was part of the old MSD definition.  Tarion has modified it in order to clarify that :

  1. the test is objective; and
  2. the warranty will only be triggered if a significant portion of the unit/common elements is materially and adversely affected.

It is important to note that even if a claim meets one of the above three tests, there are warranty exclusions that may apply to exclude the claim from warranty protection.

Changes to the MSD Claims Process

The MSD claims process has also been overhauled by Tarion, which will have an impact on owners who are making a claim. Tarion Bulletin 24R provides a detailed breakdown of the new process.

http://www.rcllp.ca

Home Builders: 7 Tips for Fostering Good Neighbourly Relations

Post by: Craig Robson

Ontario home builders who are venturing into built up areas to develop homes or condominiums have good reason to be neighbourly.

In built up areas, it often happens that neighbours develop a keen and sometimes vocal interest in a project.  They may, with some justification, feel that they have a vested interest in the development, given that they will look at the completed project every day, be subject to some level of construction, traffic, shadows, noise, and other issues that might be caused by the project.

The range of concerns may range from the wholly reasonable to the absurd.  Even if concerns are not well founded or are based on false information, the risk to the home builder is that the neighbours mount a campaign intended to either change, delay, or block the proposed development.

A home builder’s best defence against such opposition is to consult with neighbours from the outset and respond to their concerns.  Specifically, home builders should:

  1. Provide information about the project to neighbours from early on.  Communicate how the project has been designed to integrate with the existing neighbourhood and limit the potential for land use conflicts or other adverse impacts.  Also give them as much information as possible about what is proposed for construction and the expected timeline;
  2. Consider convening one or more neighbourhood information meetings where the home builder can present the project in the best light;
  3. Consider setting up a website that is updated as new information about the project comes available. This should only be done where the home builder is prepared to keep the information current.  The website can also be a spot for soliciting neighbours’ comments about the project, either by e-mail or through a “Comments” form;
  4. Respond to any misinformation about the project which sometimes develops due to rumour or speculation.  If the project is a well-designed project with demonstrable community benefits, then there is every reason to keep the neighbours well-informed;
  5. For a mixed-use project, consider asking neighbours what commercial uses they would like to see in the neighbourhood.  This could reveal an unexpected need for commercial components that would otherwise be missed;
  6. Provide information about why the project is a good project for the neighbourhood and the wider community.  It is not enough that a project is expected to be a profitable one for the home builder.  Home builders should know and be able to summarize the key community benefits that will flow from individual projects; and
  7. Adjust the project to respond to legitimate concerns.  Municipal officials will often appreciate anything a builder can do to defuse a potentially tense neighbourhood situation.

Doing the above and providing information and a forum for feedback from neighbours may allow for a smoother and faster process despite the initial time it takes.  It also allows the home builder to get a better idea of the arguments it may face and provides time to build a response or defence to those arguments.

http://www.rcllp.ca