Again
not legal advice. I can respectfully relate to the group dynamics here, living in a Building Scheme - not condo law - of similar waterfront environment.
To understand the Oppression & remedy in this Muskoka dispute,
it may helpful to try to de-construct what the judicial decisions say factually happened.Those decisions describe a multi-unit – maybe only 2 storey – Muskoka lakefront of merely 20 UNITS but with waterfront and some sort of management function in place.
It starts when two of Muskoka C.C.# 22’s four Directors heard their two other fellow Directors' request for partial de-partition of the common wall between adjacent units. One adjacent Director was prepared to sell his unit to the other ( the Nogueras ) conditional upon the common element changes.
With whatever implication for fire-retardancy, rolling noise etc, the requested changes would contiguously link - but not legally nor technically merge - the units nor abbreviate voting rights.
During that Board vote the vendor proposer physically withdrew while purchaser-Director Noguera did not. Neither Director voted.
The remaining two members of the Board resolved to authorize the "linkage changes" including to perforate the common element wall on two levels only, one level to have closable doors. Internal changes included removing one unit’s kitchen .
Expecting followup by a formal section 98 Agreement for a permanent opening / de-partitioning on ground floor & a door-controlled opening on second floor, the purchaser Nogueras
went ahead to complete the purchase relying on merely the Board Resolution.
Remember that the Nogueras literally thus accepted that the text of such approval Resolution ambiguously stated ONE particular Director’s desire to have the process reversed before either or both units would be resold. What affect could stating such single wishlist mean ?
As to “kicking eventual resale problems down the road", gotta remember that Section 98
expressly enures a lawful agreement binding current & future unit ownership.
( But will future local realtors & professionals manage to get this right without more
mishigas ? For example which unit buyer may the P & S attempt to impose will be centrally bound ? What if there's defiant refusal ? Stay tuned )
Of course the corporation had been merrily ignoring section 98 for other past alterations elsewhere to the common elements . . .
Scenario later went into a Twilight Zone after – like numerous other Common Element changes – absolutely NO section 98 was issued to the Nogueras.
BUT then the Board began to demand the changes be reversed or halted . . .
The dispute arguably pushed the Corporation finally into retroactively negotiating & issuing lawful s 98 Agreements onto titles. . . Imagine how this widening mess from the past would play out in the group dynamics at this troubled site.
There must have emerged - against the Nogueras - bitter toxicity in sad contrast to the pleasant lakefront ambiance. (
And imagine what it will be like now ! )
Courts noted that
the President accused Nogueras of being “evil” ( sic ). She bizarrely & illegally purported to personally forbid the Nogueras from using the lakeside path amenity claiming they had been “peeping” into units !
In Dec 2018 ONSC issued a section 135 Oppression ( rectifying) Order sought by the Nogueras. It ordered a section 98 Agreement issued and to include the one Director’s original wishlist to reverse the changes before resale. It awarded $ 10 K for general ( non-specific ) damage. Costs = ?
On January 27 2020 a corporation appeal to ONCA was dismissed. ONCA awarded $20 K costs to the Nogueras.
Noguera v Muskoka C.C. # 22 2020 ONCA 46 issued Jan 27/20
http://canlii.ca/t/j4wx0Noguera v Muskoka C.C. # 22 2018 ONSC 7278 issued Dec 11/18
http://canlii.ca/t/hwj6wUPDATE Feb 18/20 FIFTY THREE ( 53 ) years into Ontario condo law, some reviews still have to remind Boards of the need for elementary due process & fairness !
This is also GOOD ADVICE for Building Scheme associations particularly as they brittle-up and stray further from the rule of law ! !
Jan 28/20
"Condos Must Act Reasonably When Imposing a Section-98 Agreement" by: Graeme Macpherson ( associate Gowling WLG- Ottawa)
http://condoadviser.ca/2020/01/condos-must-act-reasonably-when-imposing-section-98-agreement/condo-
law-blog-OntarioFeb 18/20 J Davidson LLB ( Davidson Houle Alllen LLP )
“Common Element Modifications by Owners – The Role of the Board” https://davidsoncondolaw.ca/common-element-modifications-by-owners-the-role-of-the-board/#more-
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