In two separate actions, BAYCOURT defended its client in actions which seek to attack its agreement for sale and rights as owner of several Units in One Ocean Condominium.
In the matter commenced by the HOA, Justice Winder confirmed that a Declaration of Condominium can be amended by way of the Court’s equitable jurisdiction.
The Court refused to strike down the Declaration.
In the Silva action, Justice Klein sided with the terms of the Agreement for Sale of the Vendor and confirmed that the Vendor could forfeit the deposit if the sale is not concluded in accordance with its terms. Justice Klein also made the following comments:
[124] Secondly, it is apparent that the Condominium Act has not kept pace with the mischief which has been generated by some of its provisions. These difficulties are strikingly illustrated by transactions involving the sale (or resale) of units, which seemingly cast an onerous burden on a prospective purchaser to ascertain that the building and units comply with near exactitude to the Declaration and registered plan. It has been left for the courts to attempt to ameliorate some of these issues by resort to common law and equitable principles on a case-by-case basis, which has not always produced a uniform approach. The time may well have come for there to be a review and revision of the Act benchmarked on other jurisdictions to address the unique issues that have developed regarding condominium title. It is noted, for example, that modern condominium legislation in Canada and elsewhere provide for what is called an “estoppel certificate” to be provided by the Association to the purchaser of a resale unit, providing information in relation to the condominium and unit which creates an estoppel in favour of the purchaser, and removes some uncertainty out of the transaction.
One Ocean Association v. Qamea Stanley Limited 385 of 2020 (Judgment)
