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Are Ontario condominium common elements themselves specifically & discretely lienable by construction lien claimants ?

Will the answer be forthcoming from the courts ? Whatever the answer, Ontario has amended its construction lien & condo laws in response to lien claimants' demands for more power to secure claims against condo owners & corporations.

What's been there is power to indirectly damage market value, frighten lenders, undermine commercial credibility. Maybe even to get stakeholders considering termination if severe. Ultimately valid or not, liens on title warn the universe of unpaid works on a march towards sucking equity if timely & successfully litigated or else discharged. They also assert timely priority over other claimants lacking superiority.

The latest judicial step in a London area condo construction dispute, has drawn attention to this. Simpler it isn't yet.

1 - The disputed London contract termination dispute in an extreme form may illustrate what the Province of Ontario heard from frustrated claimant suppliers. More details of the latest are in section 3 below,

If your corporation's already in a serious construction dispute, these might benefit from discussion with corporation's qualified counsel. This ain't legal advice.

A Nov 9/17 London Free Press article backgrounds H.I.R.A. Ltd.'s
multi-million dollar claims after termination of common area contracts at the +326 unit Masonville Gardens condo community.

Described as "modest", many of the units are tenant-occupied & owned within sizeable private portfolios. ( Nov 9/17 London Free Press “Owners caught in legal crossfire at north London condo complex” d463b740-d477-0478-f5c7-af064036c14b )


The Province of Ontario responded to lots of supplier beefs ( Dec 2017 construction lien legislative changes via assent to much of Bill 142 ). As to condo implications it apparently chose to ignore some objections from ACMO / CCI. ( Those inputs reportedly minimized the frequency & severity of beefs about title-sheltering condo common elements themselves from construction liens. )

The construction claim liening changes appear to try to unshield common elements during a lien dispute. They also MAY make it tougher & pricier for individual owners - eg amidst unit sale - to pro-rata buy their way out as under condo law before 2017-18.

Some reviewers have cited that the Province has abandoned an earlier but arguably crucial requirement in Bill 142 that would have required a distinct land titles office PIN for every set of Ontario condo common elements. Without such how could specific condo common elements be liened ? That leaves units as main targets.

Lien claimers will also still have to lien unit by unit, which computerization has rendered less complex.

It doesn't sound clearly easier nor cheaper for a specific unit to pro-rata escape the construction lien.


- the Construction Lien Act which received Royal Assent Dec 12/17 renamed to “The Construction Act RSO 1990 ch C.30”


the resultant apparent un-shielding of condo common elements ( from construction liens ) & end of former quicky "as of right" pro-rata unit specific bailout. See as now shown in the amended Condominium Act 1998’s new section 14 effective July 1 2018 ( “Exception, construction lien - (4) Subsections (1), (2) and (3) do not apply if the encumbrance is a lien under the Construction Act. 2017, c. 24, s. 74 (1).” )

Except for reportedly deleting specific title PINs for condo common elements, the Province's intentions were shown within section 6.1 Condominiums April 30 2016 “ “Striking the Balance: Expert Review of Ontario's Construction Lien Act”

Bottom line looks like construction lien claimants want to lay the maximum on condo communities including previously shielded common elements. They apparently do not want to facilitate specific unit bail-outs without a court motion.

3 - H.I.R.A Ltd v. Middlesex S.C.C. # 823 ( 2018 ) ONSC 3661 issued June 15/18

Pending Divisional Court formal hearings into this dispute to start at least 3 months away ( Oct 3/18 ), lien-filing civil claimant HIRA immediately seeks & obtains until upcoming Divisional Hearing an interim "security posting" relief.

The granted relief is described to suspend a lower Court Order that required M.S.C.C. #823 to post lesser security against HIRA’s $2.744 M lien. The lien SOMEHOW ! ? is described as already "registered" against title to what is here labelled “ the subject project lands” - ? common elements ? Already "registered" . . . but against what ?

Such had been made conditional & suspensive upon posting $ 1.5 M lesser security said just over 50 % of this claim. HIRA wants a higher security posted. Posting security was a conventional lien scenario.

Doesn't suspending the lower court order ratify a common element lien IF somehow "registered" before such even became legal under both sets of act changes ?
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CONSTRUCTION LIENS DIRECTLY ON CONDO COMMON ELEMENTS ? a shield now removed 2018/06/22 12:06  
1- In perspective, we in the whacky Wild West of Ontario Building Schemes have always been vulnerable to executions against any common elements if there are such.

( Such are not statutorily "shielded". If any common lands ownership is technically not owners' tenancy-in-common but instead some sort of secretive contracting body, things get even 'edgier'.

There's no stakeholder-friendly requirement for a common land liener to even notify individual Scheme owners "in the dark". Nor to issue pro-rata releases, howsoever expensive or complex ).

So by comparison to liening Building Schemes, Ontario's former condo environment - apparently shielding common lands from the filing & DIRECT actioning of construction liens for post-Declaration claims - used to be somewhat "debtor friendly".

Or at least it somewhat weakened or unit-privatized lien damage.

( About Building Schemes : How vulnerable are Building Scheme common lands ? Are your sole choices partition or endlessly sucking up impaired titles ? At least now that an EXTREMELY authoritative but non-Canadian articulation of expiry calculation has thankfully been issued for such Building Schemes , escape may eventually be easier. But Schemes with common elements may still face some extra difficult issues ahead when their now unambiguously calculable lifespan ends.

Few understand this. Resolving or revitalizing these Schemes in time, may ironically be discouraged by intransigent wilful ignorance. This ain't Florida chapter 720 ( pro-HOA ) territory .

Can you persuade other Scheme stakeholders to pay, fight or upright avoid common lands mis-governance in the first place ? Should you even try to do so ?

Whatever MIGHT happen to Scheme assets, maybe it's too often better to keep quiet. To just let the universe unfold rather than daring to alert other Building Scheme stakeholders. Scheme Boards may readily want to shoot the messenger. Or to prolong - even to increase - dubious or illegal shenanigans. Even daring to discreetly alert beforehand, may boomerang with lasting bitterness against those who gave that alert quietly & respectfully . That's one scenario reported widely in U.S. states.

Many believe that "forty years is enough" for typical Schemes without an otherwisely contracted lifespan. Such even gets a degree of agreement in Ontario's 1989 Law Reform Commission report on real property covenants. )

2 - Ontario CONDO DIRECTORS respectfully should obtain qualified insured legal advice about the Province's lien changes. This ain't such.

For genuine statutory Ontario condos, they appear to NOT INCLUDE - or NOT YET - executions directly against common elements.

Would most suppliers want the hassles of such ? They want their bucks.

The changes would seem to increase a supplier's power to impeach and damage a condo corporation’s commercial credibility & to time-prioritize other such liened claims. They want to kick the behinds of condo Boards & owners, including by impeaching market values.

Without court orders or whatever, actual condominium executions would seem to INCLUDE continuing via the good ole' turmoil-inducing unit-by-unit formula. Possibly may even trigger some eventual form of overall condo community Termination and winding down with satisfaction of debts.
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better choices for construction lieners 2018/06/23 11:35  
( UPDATE Oct 7 /18 : Divisional Court increases by $ 100K the amount of security required to be posted by condo corporation to vacate the HIRA construction lien. Cost overrun dispute can presumably continue with unit owners facing heavier burdens against just individually bailing out. H.I.R.A Ltd v. Middlesex S.C.C. # 823 ( 2018 ) ONSC 5931 issued Oct 5/18 )

* * *

To summarize, the Province apparently has legislatively freed Construction Lien Claimants from some degree of straitjacketed hassles & accounting if they don’t want unit by unit interactions.

Even without requiring title pins for condo common elements, the changes seem to effectively allow construction lieners to sufficiently now drag common elements into title-encumbering /credibility damaging lien environment . Looks like to better coerce payment from the condo corporation .

Now condo units whose owners might want a unit specific escape, will need a Motion albeit like a class action.

Associated Mechanical Trades Inc. v. Kurzbauer 2008 is described to have forced a construction liener to release the individual owner whose pro-rata payment it had refused without entire claim being paid also. It apparently applied to new liens the old formula as if to "pre-registration claims" that had been legislated in pre-amendment Condo Act’s section 14. SEE :

See also : July 9/12 “Legislative Amendment Required – Posting security to clear a “common element” related lien from an individual condominium unit should be easier” by lawyer Adam Zasada (Sorbara, Schumacher, McCann LLP )
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