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#18639
LENDER wins priority registration TUG-OF-WAR against condo corp which evicted disputant borrower 2016/11/29 01:43  
This Endorsement MAY BE a major condo decision.

At the very least it's a cautionary tale for Directors & disputants alike with the Province's awaiting-(re)prescription Condo Act Regulations still un-publicized.

Would something in the Regs & Condo Authority ADR have kept this outcome away ? Was defying the 2011 $ 15 K court order worth all this to the now expelled ex-owner disputant, who appears to have lost all residual equity ?

A ex-owner’s lender CIBC wins a winner-take all registration priority tug-of-war against a condo corp which had Power of Sale’d the unit from under the disputant ex-owner.

Details of whatever the original condo dispute are unaddressed. They culminated in a 2011 compliance order & $ 15 K costs award against the ex-owner/ borrower.

By 500 % over a period of 2.5 years the condo corp liened and re-calculated its $ 15 K 2011 award against the disputant owner. ( 134(5) has controversially allowed additional corporation costs to OBTAIN the compliance order over & above what court directed, such unusual power to theoretically be extended AGAINST the condo corporation after the 2015 amendments are eventually applied ).

Despite the owner's efforts the condo corp gets him evicted in Nov 2013 for the eventual sale.

By date of subsequent interaction with the disputant’s lender – somehow out of the loop - the condo corp’s section 134(5) claim (which it believed it had liened in a timely manner), at $ 113.6 K had reached 7.6 times the original 2011 costs order of $ 15 K.

But here the lien is held untimely in leaping ahead of the priorly registered lender on title. The bank wins the tug-of-war.

All proceeds go to the prior registered lender despite the condo corporation’s expulsion & Power of Sale of the disputant's unit.

Background :

For almost 9 months in 2011 AFTER expiry of the ex-owner’s original 30 day judicial deadline to pay, and amidst chaotic Adminstratorship & change of counsel, the condo corp failed to formally lien the unit for the ignored Compliance award & 134(5) ‘additional costs’ until mid December 2011.

Flash forward : With sale proceeds inadequate to satisfy either claim, either condo corp or lender has to get zilch. All this from a $15 K costs award ?

Two arguments that failed

1 - That Management Choice Starts the Timeliness Clock. The Condo corp here fails with argument that it can unilaterally decide date when the additional ( Compliance Order-Obtaining ) charges are ’added’ to the common expenses of the unit involved.

This argument included when it may unilaterally choose to record them on the unit specific account.

Such are the variants that its own management/arbitrary choice can start the 3 month retroactive clock for crystallizing super-priority over prior registered lenders.

But Judge disagrees.

Holds 3 month super-priority starts running NOT FROM some condo corp discretion nor unit specific account entry but from the Payment Due date set in the Compliance order.

Holds the lien fails to crystallize super-priority over the lender because registration occurred 9 months later – not just the statutory 3 - after the original judicially set ‘payment due date’ imposed on the ex-owner.

2 - Unjust Enrichment This also rejects YCC #385's Unjust Enrichment claim ( that the lender is being unfairly enriched by all the condo corp's expense & labour to evict the dissenter & Power of Sale his unit ! ) This argument is well known in the universes of road associations, HOAs & family breakup asset wars . . .

CIBC Mortgages Inc v Y.C.C # 385 issued Nov 24/16 http://canlii.ca/t/gvsn5
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#18654
Bank gets $ 62.5 K costs from condo corp; owner long ago turfed over a $15 K original dispute award 2016/12/23 01:22  
Costs awarded : Condo corp will suck up $ 62.5 K of lender’s costs plus its own !

and owner lost everything over $ 15 K award

CIBC Mortgages Inc v Y.C.C # 385 2016 ONSC 8036 issued Dec 21/16 http://canlii.ca/t/gwkxb )
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#18736
APPEAL COURT UPHOLDS LENDER VICTORY ( priority registration TUG-OF-WAR; borrower evicted ) 2017/06/30 17:30  
ONCA June 28/ 17 CIBC ‘s win upheld.

Behind some interesting senior judicial discussion of the interplay between Ontario condo liens & other creditors' remedies, maybe some discomfort with giving condo governancers more power than maybe they can lawfully handle . . . . . .

. . . . And so attention may slowly turn to how well the Ontario Act reform process has addressed some shockingly wide unilateral powers.

Those powers are to leap beyond how a court addresses costs awards, a leap to punish those targetted successfully by section 134 Compliance Orders ( but merely to obtain but not enforce such Order ).

( A concurrently issued Appeal decision Hashemi seems to disparage sloppy or improperly documented section 134(5) additional costs to obtain Order )

: CIBC Mortgages Inc v Y.C.C # 385 2017 ONCA 542 issued June 28/17 http://canlii.ca/t/h4jk3
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