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Real Property Law - Condominiums - Unit holders - Liability of - For default on payment of common fees

Thursday, December 08, 2016 @ 7:00 PM  

Appeal by a strata lot owner, Terry, from a chambers judgement finding that fines imposed by the Strata Plan were validly levied. The appellant jointly owned a strata lot with her mother, now deceased. Between 2004 and 2013, the respondent imposed fines for the alleged failure by the appellant and her mother to pay monthly strata maintenance fees, and special assessments related to the replacement of the development’s boiler. In 2015, the appellant brought a petition which sought, among other things, a declaration that the respondent failed to comply with the statutory notice provisions for the imposition of fines with an order that the fines were therefore invalid. The chambers judge concluded that the appellant received adequate notice of the complaint that gave rise to the fines. The judge declined to set aside the fines, but determined he was unable to quantify the amount owed, as a separate enforcement action by the respondent was required. Terry appealed.

HELD: Appeal allowed. The chambers judge did not err in framing the issue of whether the appellant received proper notice of the respondent’s complaints with an opportunity to be heard prior to imposition of the fines. The judge demonstrated that he was well aware of the notice requirements of s. 135 of the Strata Property Act. However, the chambers judge misunderstood the respondent’s vague and unorganized evidence relevant to the issue of notice and made factual findings that were unreasonable or unsupported by the evidence. There was no evidence that the respondent complied with the notice requirements before imposing fines for non-payment of the special levies related to the boiler. In addition, the correspondence regarding the fines for non-payment of maintenance levies failed to particularize the alleged breach and made erroneous assertions regarding previous indebtedness that had been satisfied. No opportunity to be heard was provided with respect to the latter fines. The chambers judge’s order was varied by adding a term stating that all fines assessed against the appellant’s lot were invalid and set aside.