Canada's Condominium Magazine

Ask the Lawyer: Dispute about money with our Condo Board… can we refuse payment?

A reader asks: “We live in Nova Scotia and have a dispute with our Condo Board. They have issued a special assessment and demand payment. We have asked to see the Board minutes that approved the special assessment but they are refusing to show them to us. Furthermore we have a dispute ongoing about monies owed to us by the Board which exceed the amount of the special assessment. In the circumstances can we refuse payment until the documents have been given to us and the money issues have been discussed. There is also a AGM coming up and they won’t let us vote on the grounds that they claim we owe money.

Can they do that since we think we are in credit?”

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Richard Answers: “I can only answer based on the law in Ontario.

The board of directors has the authority to impose a special assessment of common expense contributions on unit owners.

Sometimes expenses arise that were not budgeted for, but for which the condominium must nevertheless pay. There can also be unexpected, or unexpectedly early, costs arise that deplete reserve funds to an extent, or at a time, not contemplated by the condominium’s reserve fund study and plan. In such cases, the board of directors may impose a ‘special assessment’ of common expense contributions on the unit owners.

Unit owners have the same obligation to pay special assessments of common expenses as they have to pay regularly assessed common expenses. A failure or refusal to pay a special assessment as and when required by the board of directors gives rise to a lien against the owner’s unit.  Condominium boards do not require unit owner approval for a special assessment unless the by-laws of the condominium specifically require it. In addition, an owner cannot refuse to pay an assessment because they feel they are owed monies by the condo. In other words, they can’t execute a set-off. If they do, the Condo will lien their unit.

Finally, if you do not pay your special assessment you are deemed to be in arrears of common expenses and therefore are not entitled to vote at a meeting until your fees are paid in full.”

 

RICHARD P. HOFFMAN

Richard Hoffman has been a member of DelZotto, Zorzi LLP since 1992, practicing in the area of condominium law. He has represented condominium corporations and unit owners through all stages of the litigation process and at all levels of Ontario Courts (Superior Court of Justice, Divisional Court and Court of Appeal). He is well experienced in handling all types of condominium litigation, from applications to enforcing compliance with declarations, by-laws or rules, to handling multi-million dollar claims for budget misrepresentation. He has also advised condominium corporations of various sizes on all facets of condominium law.

Richard is presently a member of the Canadian Condominium Institute and regularly lectures on contract and agency law in the condominium context at Humber College, as well, he is a regular contributor to various condominium magazines and has contributed to the condominium section of the Toronto Star.

 

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