Law Times

Law Times • June 14, 2010 FOCUS PAGE 13 Condo law evolves with retiring demographic Move to simpler, high-density lifestyles mandates a close watch on case law BY DARYL-LYNN CARLSON For Law Times fi nding themselves having to keep up to speed on case law per- taining to condominiums. Th is is largely due to the fact L that aging baby boomers are downsizing their assets and choos- ing to relocate into condos that require less eff ort to maintain. Th e trend is evident prov- incewide. In Th under Bay, awyers who practise real estate law even on a part- time basis are increasingly Th e Human Rights Tribunal of Ontario has become a popular venue for condo residents to reg- ister and resolve their diff erences. Last December, in the matter of DiSalvo v. Halton Condominium Corp. No. 186, the tribunal or- dered a condo corporation to install and pay the cost of reno- vations to accommodate a unit owner's need for wheelchair ac- cess in the common elements. It also fi ned the condo corporation $12,000 for violating the owner's human rights and not respond- ing reasonably to inquiries about It's important to keep the board of directors and property managers up to date on case law developments and other decisions so you can facilitate the best service to your clients. Ont., Douglas Shanks of Chea- dles LLP has recently assisted many clients ranging from de- velopers to property managers to boards of directors. "People are moving out of their family homes into condominiums, and it's made for an interesting shift we're seeing in our practice in general," says Shanks. "We've been representing everyone in the condo development process." He says most of the condos that have been constructed re- cently or are under development in Th under Bay are three- or four-storey buildings rather than high rises as in Toronto. Because of the surge in condo developments, Shanks says it's important for lawyers to keep up with recent case law related to all aspects of them emanating from human rights tribunals and the courts. modifi cations necessary to facili- tate his access. At the same time, there have also been many cases related to discrimination allegations by owners during the past year or two that the tribunal has dis- missed, including the matter of Iourtchak v. York Condominium Corp. #201 in which a woman complained that the board's presi- dent had treated her rudely. Condominiums, which are governed by a board of directors comprised of resident owners, are also increasingly using arbi- tration and mediation to resolve disputes. "It's important to keep the board of directors and property managers up to date on case law developments and other decisions so you can facilitate the best ser- vice to your clients," says Shanks. "Each party has diff erent rights depending [on case law develop- ments], so it's important to let them know their rights, especially when you have an increasingly elderly population." Shanks also notes one recent case that served as a precedent regarding a condo owner's instal- lation of a hot tub. Th e matter, which ended up going to court, involved a condo in Waterdown, Ont., and was ultimately ap- pealed. Th e case, Wentworth Condominium Corp. No. 198 v. McMahon, dealt with the condo board's objection to a resident's installation of a hot tub and gaze- bo outside of his unit. Th e board contended they were part of the condo's common area and thus required its approval. Th e Court of Appeal ruled the resident's hot tub and gazebo weren't technically an addition under s. 98 of the Condomin- ium Act because they could be easily disassembled. Th erefore, installing them didn't require the board's approval, regardless of whether they were part of the common elements. Besides monitoring case law, lawyers serving clients in any capacity related to condos will have to advise them on the im- pact of Ontario's harmonized sales tax along with develop- ments aff ecting each condo's reserve fund requirements. Th e introduction of the HST tax will aff ect condo corpora- tions' mandate to have a requisite amount in their reserve fund as they'll have to pay more for ser- vices ranging from property man- agement fees to utilities, repairs, and renovations. But in February, the Canadian ntitled-1 1 The Law of Climate Change in Canada An essential text for those developing expertise in climate change law This is the first and only resource to provide an in-depth description and analysis of the complex and ever expanding array of domestic and international laws and initiatives addressing climate change in Canada. Containing comprehensive coverage of provincial and federal legislation and policy developments from across Canada, The Law of Climate Change in Canada also describes in detail some of the many emerging climate change law sub-disciplines, including: • carbon finance • litigation • real property • tax • securities law and disclosure Co-authored by leading lawyers and academics from across North America ORDER your copy today Looseleaf & binder • $320 Releases invoiced separately (2/yr) P/C 0268030000 • ISSN 1920-695X The editor, Dennis Mahony, is widely regarded as a leading expert in this complex and emerging new field. He has recruited an exceptional group of lawyers and academics from across Canada and the U.S. to ensure unrivalled subject matter breadth and depth. Stay on top of the latest legal developments and manage emerging issues Condominium Insti- tute and the Associa- tion of Condominium Managers of Ontario announced they had successfully lobbied the Ontario government to amend provincial legis- lation enabling condo corporations registered before May 2001 to have 15 years, up from 10, to achieve and top up their reserve funds. Th e amount required in each condo's reserve fund is rela- tive to the number of units within each property. Lawyers have also Douglas Shanks been advising their board of director cli- ents about the federal home renovation tax credit for this year's tax-fi ling deadline. As a result, they continue to be busy, both due to demographic trends and new developments in the law. But given the move towards condo living, it's a phenomenon that likely won't subside during the next fi ve years or so. LT 6/7/10 9:14:18 AM For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0617 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Mahony_Law of Climate Change (LT 1-3x4).indd 1 www.lawtimesnews.com 6/9/10 2:12:08 PM Editor: f Dennis E. Mahony With contributions f ro rom across Canada and the U.S. m a team o f leading lawyers and academics

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• Escalating Claims
• Bylaw Reform
• Focus On Real Estate Law