Commercial unit owner forced to pay back Condo Corporation for 6 years of hydro expenses despite a 2 year limitation period
Amanda M. Magee, Associate Lawyer
Phone: 604-685-5438
Email: amm@lmlaw.ca
In a decision from the Ontario Superior Court, Middlesex Condominium Corp. No. 195 v. Sunbelt Business Centres (Canada) Inc., a condominium corporation was successful in its claim to recover six years’ worth of hydro expenses from the owner of several commercial units on the basis that the hydro had exclusively been used by those units.
All 28 commercial units in the seven-story mixed-use condominium building were owned by the defendant Sunbelt and leased to various commercial enterprises. Sunbelt had combined several of its units to form larger units, without the knowledge of the condominium board and often altering the electrical wiring to do so. The commercial units received hydro through 11 electricity meters that were separate from the bulk feed serving this ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on upon without independent legal advice. the residential units.
The condo corporation had been paying the metered for the commercial units since 2006 as part of the common expenses split between all of the owners in the corporation. In 2014, an electrician hired by the condo corporation determined that the 11 meters were providing hydro exclusively to the commercial units and were separate from the common property elements of the rest of the condominium. The condo corporation promptly stopped paying the metered accounts and sought reimbursement from Sunbelt for the commercial unit hydro it had paid in the past, totaling around $112,000.
When the condo corporation ultimately sued Sunbelt for unjust enrichment, Sunbelt took the position that the corporation’s claim was statute-barred because the two-year limitation period to commence a lawsuit had expired. At trial, the condo corporation successfully argued that the limitation period only began to run when it became aware that the hydro accounts were “properly chargeable” to the Sunbelt units in 2013 after it sought legal advice on the issue.
The condo corporation also relied on the condominium declaration, a document used in Ontario which serves as the ‘constitution’ of a condominium. In this case, the declaration stated that any separately metered expenses must not form part of the condominium’s common expenses.
The Court found that the condo board was bound to abide by the declaration and obliged to enforce it and that any prior decision of the condo board in paying the expenses did not stop it from seeking repayment from Sunbelt.
WHAT WE DO: Lesperance Mendes has been advising and representing strata corporations and strata owners since 1997. To find out more about how the experience strata lawyers at Lesperance Mendes can help you resolve your “unsettling” strata disputes contact Paul G. Mendes, Partner, at 604-685-4894 or email him at pgm@lmlaw.ca
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on upon without independent legal advice.
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