Chapter 2: Condominium Development

• Pages: 5-43
• Author: Robert Mullin

5

CHA PTER 2

CONDOMINIUM

DEVELOPMENT

1 INTRODUCTION

[1] The process of creating a condominium, referred to as condomin-

ium development, represents a specializ ation within condominium

law. Bringing a condominium from concept to registration is both a

complex legal process and a multi-disciplined eort. At the outset, the

practitioner should recognize that thei r contribution is only one ele-

ment of the registrsation of a condominium. The role of the lawyer

should be (i) to clearly identify and implement the legal steps needed to

bring a condominium development to registration and (ii) to recognize

how their eorts interface w ith the larger development team. To avoid

errors, counsel should actively work with this te am of professionals.

Ultimately, condominium development creates what one leading

commentator has referred to as a “unity of the parts.”1 Said dierently,

a condominium fuses three (3) components, being the units, the com-

mon elements, and an attending corporation, into one (1) community.2

Understanding thi s process is the goal of this chapter.

1 Peter M Dunbar, The Condominium Conce pt: A Practical Guide for Ocers,

Owners, Realto rs, Attorneys, and Directors of Florida Con dominiums, 17th e d

(Lanham: P ineapple Press, 2024) at 9.

2 Ibid.

CONDOMINIUM LAW IN ONTAR IO

6

2 THE DEVELOPMENT PROCESS

[2] The legal process to reg ister a condominium involves the following

steps: a) identification and creation of the development team, b) the

choice of condominium, c) navigating both the application and approv-

al process, d) document production, e) sales, and finally, f) the regi stra-

tion and turn-over of the condominium.

A The Development Team

[3] As mentioned, the development team w ill need to work in close

collaboration to bring the condominium to regi stration.3 Understand-

ing both the lawyer ’s duties and those of the larger team is imperative.

On most condominium developments, the team will i nclude both the

client and a speciali zed group of professionals, generally consisting of

a lawyer, a land use planner, an architect and /or engineer, a surveyor,

a condominium property manager, a realtor, and the client’s lender, all

described in further detail below.

[4] The par ty registering a condominium i s legally referred to as

the “declarant,” being “the owner in fee simple of the lands.”4 Given

that a significant number of legal obligations occasion a declarant, the

Condominium Act, 1998 (the “Act”), also captures a legal successor but

excludes a fair market purchas er.5 The role of a declara nt in a condo-

minium development is significant, having a direct and overwhelmi ng

impact on the nature of the eventual condominium. Ontario’s Court of

Appeal ha s held:

It is the declara nt, as developer of the property, who defines the con-

tent, character an d structure of the condominium project. Thi s is done

through the fili ng of the declaration creat ing the condominium cor-

poration and governing it s operation. How t he condominium p roject

is structure d will have an impact on t he value and therefore, the sell-

ing price of the indiv idual units. For example, if the superi ntendent’s

suite and guest unit s are included as part of t he common elements,

the value of each of the condomin ium units sold to purchase rs from

the declarant by t he condomi nium corporation would be higher t han

3 Condominium Act, 1998, SO 1998, c 19, s 2 [Condo Act].

4 Ibid, s 1(1). See al so World Medpharm Inc v York Region Standard Condominium

Corp No 1279, 2024 ONSC 1191 at para 7 [World Medph arm].

5 Metropolitan Toronto Condominium Corp No 1250 v Mastercraft Group Inc, 20 09

ONCA 584 at paras 2 3–26 [Mastercra ft].

7 Condominium Development

if the superi ntendent’s suite and guest units h ad to be purchased or

rented from t he declarant by the c ondominium cor poration.6

[5] Therefore, given the importa nce of the declarant, the practitioner

should ensure that their involvement is sought throughout the registr a-

tion process. Regrettably, many declarants may elect to have an arm’s

length role in the granular a spects of the registr ation process, abdicat-

ing such to their team of professional s. Given that the real estate prod-

uct oered to the public will be shaped by such development decisions,

a declarant should have a keen interest in th is process, including, for

example, the setting of the condominium’s proposed budget or shaping

of the proposed governing documents. Fundamentally, the declarant

will adopt liability arising from the development process and should

thus have a sharp underst anding of such duties.7

i) The Lawyer

[6] The law yer will serve a var iety of functions. First, acting as a trans-

actional real estate lawyer, they will be responsible for ensuring the

declarant acquires fit, m arketable title to the subject lands, free of

unwanted encumbrances or limit ations.8 Related to such will be the

determination if the lands in question can accept a condominium’s

registration or require the t itle’s conversion to meet the needs of the

applicable land registry system.9 In Ontario, this is refer red to as first

title absolute, and this is a mandatory precondition to register a con-

dominium .10

[7] Second, the lawyer will often work with an urba n planner to

ensure that the la nds will perm it the development intended. In On-

tario, careful rev iew of the operative ocial plan(s),11 zoning by-l aws,12

minor variances,13 legal non- conforming uses,14 and rel ated planning

considerations are imperative. Use, densit y, height, shadow ing, archi-

6 Toronto Standard Condominium Corp No 2095 v West Harbour City (I) Residen ces

Corp, 2014 ONCA 724 at para 30 [West Harbour ONCA].

7 Condo Act, above note 3, s 75; Ontario Ne w Homes Warranty Plan Act, RSO 1990,

c O31, s 13.

8 Wong v 407527 Onta rio Ltd, 1999 CanLII 3788 (ONCA). See also Bielanski v

Mund enchira , 2019 ONSC 1162.

9 O Reg 48/01, s 48(2)(a).

10 Land Titles Act, R SO 1990, c L5, s 30 [Land Titles Act].

11 Planning Act, RSO 1990, c P13, s 16 [Planning Act].

12 Ibid, s 34.

13 Ibid, s 45.

14 Ibid, s 3 4(9).