Condominium Lien Rights for Enforcement Costs – Another Important Decision

In the recent case of TSCC 1724 v. Evdassin (September 22, 2021), the Court was asked to consider the validity of a lien registered against the owner’s unit by the condominium corporation. 

The lien covered costs of the condominium corporation under three key categories:

1. Costs awarded to the condominium corporation by the Court in a previous case where the Court had ordered the owner (Mr. Evdassin) to allow the condominium corporation to enter his unit to carry out required replacement of Kitec plumbing. See TSCC 1724 v. Evdassin, March 10, 2020.
2. “Additional actual costs” incurred by the condominium corporation in obtaining the above-noted Court order (which costs had been added to the lien pursuant to Section 134 (5) of the Condominium Act).
3. Costs incurred by the condominium corporation due to other violations by Mr. Evdassin.

Mr. Evdassin argued that the condominium corporation was only entitled to recover and to lien for the costs under Category 1 (namely the costs that had been specifically awarded to the condominium corporation by the Court). The Court disagreed.

In terms of the costs under Category 2, the Court confirmed the right of the condominium corporation to lien for those amounts under Section 134 (5) of the Condominium Act. In fact, in the cost endorsement following the previous decision (April 28, 2020), the Court had stated the following:

If the Condominium wishes to recover its actual costs, and thereby protect the other unit holders, it can do so through s. 134(5) of the Act or s. 2.2 of its Declaration.

The Court went on to confirm the right of the condominium corporation to lien for additional costs under Category 3, incurred “as a result of Mr. Evdassin’s abusive, disruptive conduct”. The Court said that this right came from Section 2.2 of the Declaration. Section 2.2 said that owners were responsible for “any losses, costs or damages” incurred by the condominium corporation because of the owner’s breach of the Condominium’s Declaration, By-laws or Rules.

Importantly, the condominium corporation had previously asked the Court to order Mr. Evdassin to stop alleged abusive behaviour towards the condominium corporation’s employees.  The Court said that Mr. Evdassin’s conduct did, in some respects, violate the Condominium Act and the corporation’s Declaration, By-laws or Rules. But the Court had nevertheless declined to make any order about those matters, except as it related specifically to Mr. Evdassin’s interference with the replacement of the Kitec plumbing.

But again, in this subsequent application about the validity of the condominium’s lien, the Court held that the condominium corporation was properly within its rights to lien for costs incurred by the condominium corporation in relation to those additional violations. Here’s what the Court said:

In my ruling on the Condominium’s application for a compliance order, I found that Mr. Evdassin violated the Condominium Act by refusing to replace the Kitec pipes in his unit and refusing to allow the Condominium to complete the work. I also found that Mr. Evdassin’s rude, abusive, uncooperative, disruptive behaviour violated the Condominium’s Declaration and the rules. I was not satisfied that Mr. Evdassin’s conduct was sufficiently persistent or intransigent to warrant a compliance order. But I found he had violated the Condominium’s Declaration and rules. The Condominium is, therefore, also entitled to recover any costs incurred as a result of Mr. Evdassin’s abusive, disruptive conduct under section 2.2 of the Declaration.

Here’s the important point: This decision contrasts with previous rulings in the case of Amlani v. YCC 473 where the Court held that a condominium corporation can only lien for enforcement costs after obtaining a compliance order (based upon Section 134 (5) of the Act). See our previous blogs on the Amlani decisions.

In summary, the Evdassin decision appears to be an important departure from the principles expressed in Amlani. In our view, this is welcome. As mentioned in our previous blogs, we have some serious concerns about the reasoning in the Amlani decisions.

That said, we hasten to note that the Amlani case was not mentioned in Evdassin. So, the Court didn’t explain how the principles in the Amlani case were avoided in the Evdassin case. It might be because of the following important difference between the two cases: The relevant indemnification provision in the Declaration is very different in each case. But again, this wasn’t specifically explained.

That brings us to the following “takeaway”: We continue to feel that a well-worded indemnification provision in the Declaration may be extremely important when it comes to a condominium corporation’s lien rights for enforcement costs. Certainly the Evdassin case supports this.

Stay safe and stay tuned to Condo Law News to keep up to date on the latest developments on condominium lien rights!