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CONDOMINIUMS - Adherence to bylaws and rules - Voting rights

Friday, July 13, 2018 @ 10:10 AM  

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Appeal by a unit owner, Goertz, from dismissal of his application seeking declaratory relief. The appellant developed the land and condominium units that became registered as the respondent, the Owners Condominium Plan No. 98SA12401. The appellant owned 11 of the 44 units in the development, residing in one unit and renting out the others. A long-standing conflict between the Condominium Corporation and the appellant arose over unpaid invoices charged to the appellant to clean up weed behind his units. The appellant was terminated as a Condominium Board member for absences from board meetings and non-payment of monies owed. The dispute between the parties escalated after a resolution required owners who rented out their units to provide a deposit to safeguard against tenant damage to common property. The appellant declined to pay the deposits and requested information about board meetings, alleging non-compliance with the bylaws. The board declined, noting the appellant was no longer a board member. Following non-payment of further invoices for cleaning up the appellant's properties, the board suspended his AGM voting rights. Litigation ensued as the impasse continued. The board brought a small claims action against the appellant. The appellant commenced his application seeking a wide spectrum of relief. The chambers judge found that the board properly suspended the appellant's voting rights due to non-payment of monies owed. The judge dismissed the application for declaratory relief, as it was not oppressive to require deposits for the appellant's rental units, which accorded with the bylaws. Goertz appealed.

HELD: Appeal dismissed. The board had a statutory duty to manage and administer the units, balancing the private and communal interests of the owners. The chambers judge did not err in determining the board properly assessed deposits on rental units in accordance with that duty, and that the deposits levied were required as necessary, and fell within the scope of “contributions” mandated by the bylaws and legislation. The doctrine of laches was not available to support non-payment of the deposits. The chambers judge did not err in finding that the non-payment of deposits and other invoices justified suspension of the appellant’s voting rights at the AGM, but erred in the scope of his findings by overstating the number of units on which such rights were suspended. However, the error would not have impacted the outcome on any of the votes held at the AGM. No error arose from the determination that the board’s conduct was not oppressive. To the extent that there was selective enforcement of the bylaws, such conduct did not meet the threshold for an oppression finding. The balance of the relief sought was appropriately dismissed. For the reasons given by the chambers judge, the award of solicitor and client costs against the appellant was appropriate.

Goertz v. Condominium Plan No. 98SA12401, [2018] S.J. No. 223, Saskatchewan Court of Appeal, R.K. Ottenbreit, P.A. Whitmore and L.M. Schwann JJ.A., May 29, 2018. Digest No. TLD-July92018010