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CONDO ACT CHANGES

On May 5, 2001 the newly revised Condominium Act and regulations became effective. Some of the changes that realtors, purchasers and sellers should be aware of are as follows:

A)    RESALE REGISTERED CONDOMINIUMS

1.    Status Certificate - Previously it was called an estoppel certificate. The new STATUS CERTIFICATE can be ordered by anyone (realtors, appraisers, a person walking by the building) so long as a written request is made together with the fee (maximum of $100.00, including taxes). From the time the request is made in writing and the fee is paid, management has up to 10 days to make the STATUS CERTIFICATE available with all the usual accompanying documents (including declaration, by-laws, budget, financial statements, rules, insurance certificate). One of the new statements in the Status Certificate obligates management to report the number of units in the complex that management is aware are leased units (as opposed to owner occupied units) which might be a factor for consideration for some buyers.

For a buyer to rely on the contents of the STATUS CERTIFICATE, it is no longer a requirement that the certificate be ordered by (or in the name of) the purchaser. Any Purchaser or mortgage lender is entitled to rely on whatever the STATUS CERTIFICATE discloses as of the date the Certificate was issued.

The STATUS CERTIFICATE must now disclose much more information about reserve fund, existing circumstances that might require a future increase in common expenses (or special assessment), possible litigation, etc. The Certificate must list the types of agreements (including management agreement) to which the condominium corporation is a party and a statement that the person requesting a status certificate has the right to obtain copies of such agreements upon paying an additional fee for labour and copying charges.

RECOMMENDATION: It is highly recommended that when vendors list a condo for sale, the vendor should order a status certificate since almost any incoming offer will be conditional on a status certificate review. Vendors and listing agents should make themselves aware of what prospective buyers will see in the status certificate and seek any needed clarification about any issues with the property manager before (if possible) receiving an offer. Knowing, and understanding the product being sold is important! Also, by ordering the status certificate at the time of listing, a vendor can save 10 days upon receiving an offer (typically being conditional on seller providing a status certificate within 10 days) so that the sale agreement can merely be conditional on buyer’s review of seller’s existing status package for 48 hours after acceptance of offer.

The buyer's condition clause should be one that requires the vendor to pay for the status certificate since the vendor can more quickly order and obtain the status certificate due to the vendor's easy access to management (although anyone can order it); also, the purchaser's lawyer might need to order a new status certificate as an update before closing (if the closing date is more than 60 days into the future) which means that the vendor pays for the certificate during the condition period and the purchaser pays for any update needed before closing by the purchaser's lawyer (depending on how far into the future the closing date is).

Example:

(a) An offer to purchase presented by a buyer should include the new revised condition: Vendor agrees to provide at Vendor's expense, within ten days of acceptance of this Offer, a current status certificate and usual accompanying documentation. Purchaser shall have 2 banking days from receipt to review and to be satisfied regarding contents of such documentation; failing which this Offer shall become null and void and the deposit shall be returned to the Purchaser without interest or deduction. This condition is included for the benefit of the Purchaser and may be waived in writing at Purchaser's sole option within such condition period.

(b) Vendor (on sign back to purchaser) has two options if status certificate was ordered at the time of listing by vendor:

(i) Vendor's agent can hand over the existing status certificate package to purchaser's agent with the status certificate clause having been deleted on sign back by vendor. Purchaser's agent must undertake, on behalf of the purchaser, to return package if purchaser does not proceed with purchase. Sign back by vendor is irrevocable for 48 hours for purchaser to review existing status certificate package since vendor refused to permit a status certificate condition. Since there is no conditional sale at this time, a vendor avoids having his property tied up for 10 days (or more) on a status certificate condition and avoids reporting the property having been sold conditionally with a stigma attaching if a conditional sale should abort due to purchaser's lack of satisfaction with the status certificate.

(ii) Vendor can change (on sign back) the words in the status certificate condition from "...current status certificate..." to "...status certificate dated               20    " (whatever the date was on the vendor's existing status certificate). If the purchaser accepts the existing status certificate for review, the 10 day window to get a certificate can be avoided. If the purchaser is not happy with the past date on the existing vendor's status certificate, purchaser will then be forced to obtain a current status certificate at purchaser's expense by changing the wording in the status condition clause (upon sign back by vendor) to "Purchaser agrees to obtain at purchaser's expense... a current status certificate...". (Time can be saved in sign-backs by verbally confirming whether or not purchaser will accept existing certificate before vendor signs back.)

2.   Reserve Fund Study - Previously there was no requirement in the old Act for reserve fund studies which were generated by management companies who recommended them be done, as prudent managers. The main requirement in the old act to fund reserves was that a minimum of 10% of monthly common expenses paid must be deposited into a reserve account for future major capital expenditures (eventual replacement of roof, windows, major repair items, etc.).

Under the new Condominium Act, existing registered condominium corporations must prepare a reserve fund study within three years of May 5, 2001. Until such a study is done, the condo corporation must still deposit at least 10% of the monthly common expenses into the reserve fund. The study evaluates the remaining life expectancy of each building component over a projected 30 year period, considers the projected replacement cost of each building component and a financial plan to fund such replacement through the projected reserve fund with recommendations for what amount the monthly deposit should be into reserve (whether it be 10%, more, or less, depending on the current balance in the reserve fund, the existing state of repair of the project, etc.). Reserve fund studies must be updated in intervals of not more than 3 years from the last study.

The Condominium Board of Directors must propose a plan for funding the reserve fund within 120 days of receiving a reserve fund study. Notice of the funding plan must be sent to unit owners within 15 days of the proposal by the Board of Directors who have 30 days from sending the notice to begin its implementation. WITHIN 10 years of the first reserve fund study done between May 5, 2001 and May 5, 2004, the funding plan must achieve an adequate level of the reserve fund to satisfy the requirements proposed by the reserve fund study. Once a level of adequacy is achieved for the reserve fund, future reserve fund study updates must ensure that any inadequacy of the reserve fund is remedied within the next fiscal year following the fiscal year in which the study, or update, was completed.

B)     NEWLY CONSTRUCTED CONDOMINIUMS

1.   Rescission ("cooling-off") Period - The new condominium act clearly states that the beginning of the 10 days (10 calendar days including every day) in which a purchaser can terminate a purchase from a builder (in writing) begins from the later of:

(a) the date on which the purchaser received the disclosure package, or

(b) the date on which the purchaser received a copy of the purchase agreement signed by both the builder and the purchaser.

The purchaser's written notice to cancel the purchase must be delivered to the builder's representative within the 10 day period. All deposits must promptly be refunded to the purchaser (together with interest for any proposed condominiums where no unit had been sold prior to May 5, 2001).

NOTE:

(i) A purchaser delivering such a notice should keep a copy with a signed receipt for delivery to the builder's representative.

(ii) A second 10 day "cooling-off" period arises in a situation where there is a material change to the disclosure package and the builder (who is required to do so) delivers a revised disclosure package to the purchaser prior to closing.

2.   Interest Payable to a Purchaser - In the old Condominium Act, unless a builder agreed in writing to pay interest as soon as deposits from purchasers were received, the Act only required interest to be paid between the occupancy date and the final closing date. NOW, under the new Act, interest (based on a regulated formula) must be paid by builders to purchasers from the time deposits have been received up until occupancy. This new requirement will NOT apply if the condo project had at least one accepted offer to purchase a unit prior to May 5, 2001.

3.   Interest Payable to Builder During Occupancy - Before the new Act came into effect on May 5, 2001, it was a matter of contract as to what was agreed between purchaser and builder as to the formula for interest rate calculation that would apply to the unpaid balance of purchase price during the occupancy period as part of the monthly occupancy costs.

NOW under the new Act (unless the builder had already accepted an offer to purchase at least one unit before May 5, 2001), interest payable on the "phantom Mortgage" to the builder during occupancy will be payable at the rate which the BANK OF CANADA has reported as the chartered bank administered rate for a conventional one year mortgage as of the first of the month in which the purchaser is required to assume occupancy.

NOTE: Now under the new Act, a purchaser (who has the available funds) can avoid paying interest during occupancy if a written notice is given to the builder during the 10 day "cooling-off period" that the cash balance of the purchase price will be paid upon the occupancy date. (A buyer who needs a mortgage cannot do this since a mortgage cannot be registered until the condominium corporation is registered).

C)     NEW TYPES OF CONDO PROJECTS

The new Condominium Act creates new concepts for future projects:

(i)   COMMON ELEMENT CONDO CORPORATIONS

No residential units are created; the developer can sell shares (for example) in a recreational facility to owners of properties within the same land registry division in which the condominium is registered. The most common example, currently is a freehold townhouse project with the internal roadways and walkways (including their maintenance and outdoor lighting) as well as any recreational facilities being condominiumized.

(ii)   PHASED CONDO CORPORATIONS

Instead of a different condo corporation (for example) being created in a three tower (3 phased) condo project (for each condo tower as it is being built), the developer can establish a condo corporation which has the ability to add each phase to the original registered condominium corporation as each phase is completed. The benefits will be to avoid a lot of unnecessary expense flowing from creating different corporations for each phase of the same project with different management companies, reciprocal agreements, easements, etc. In order to take advantage of this concept, all phases must be completed within a 10 year period.

(iii)   VACANT LAND CONDO CORPORATIONS

The units will be vacant lots although common elements can be (for example) a clubhouse, golf course or recreational facilities. The builder can establish restrictions regulating the type of housing to be built on the lots.

(iv)   LEASEHOLD CONDO CORPORATIONS

An institution (for example) with excess land can establish a lease term of between 40 and 99 years (must be the same term for all units being built in the project) so that unit owners will own a leasehold right for a certain period with such leasehold right being capable of mortgaging, selling, etc. At least five years before the lease term expires, there must be a written notice by the lessor regarding a lease renewal; a lease renewal must be for a minimum of ten years.

D)    OTHER CHANGES IN THE NEW CONDOMINIUM ACT

The changes referred to in the above sections A, B and C are some of the main highlights that affect purchasers, vendors and realtors. There are many other changes that affect developers, property managers, boards of directors, unit owners, etc. For all changes, one should consider a more detailed review of BILL 38, being the newly revised Condominium Act of Ontario which became effective May 5, 2001 and its regulations (primarily ONTARIO REGULATION 48/01). See the entire new Condo Act accessible via the Web at http://www.ccr.gov.on.ca

 

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