Can You Dispute a Condo Special Assessment in Ontario?

If a special assessment seems unfair, too large or improperly passed, you may wonder whether you can push back. The honest answer is that it depends on why it was levied, how it was passed and what your building's documents say.

This article sets out the general starting points and the forums that may be involved. It cannot tell you whether your assessment is valid, which is something a lawyer can assess from your documents.

Start with the board's power and the reason

A condo board can levy a special assessment through common expense fees without owner approval. Reasons include unforeseen expenses, a major repair that exceeds its budget, and litigation costs. Owners must pay their share, which follows the same percentage as their common expense share.

So the fact that owners did not vote is not, on its own, a ground to object. More useful questions are whether the stated reason is genuine, whether your share was calculated correctly and whether the board followed the declaration, by-laws and rules.

Possible grounds to look at

• Your percentage: your share must match the percentage in the declaration.
• Conflicts in the documents: the Condo Act comes first, then the declaration, then the by-laws, then the rules, and if they conflict the Act takes priority.
• Disclosure on a purchase: in a court decision the CAO describes, a buyer was exempt from their share because the status certificate had not clearly disclosed that assessments might be levied. What a status certificate includes or leaves out binds the corporation.
• The stated reason: reasons for a special assessment include unforeseen expenses, a major repair that exceeds its budget, and litigation costs, so compare the reason the board gives with these.

Whether any of these applies depends on the facts, so keep the notice, the board minutes and any correspondence.

Where a dispute can go

Start by writing to the board and asking for its reasons and supporting documents. If that does not resolve it, the forum depends on the issue.

A lien tied to an issue within the Condominium Authority Tribunal's jurisdiction can be disputed at the Tribunal. Examples are nuisance (noise, smoke, odour), parking, storage, pets, records and settlement compliance. Liens tied to issues outside that jurisdiction, such as repairs, must go to the Superior Court of Justice.

Whether a challenge to a special assessment itself fits the Tribunal or belongs in court depends on the exact issue. The rules on where lien disputes are heard have also been the subject of proposed changes, so confirm the current position with a lawyer before choosing a forum.

The risk of withholding payment

An unpaid special assessment gives the corporation a lien against the unit, covering the unpaid amount, interest, and reasonable legal costs and expenses. The lien expires three months after the default unless the corporation registers a Certificate of Lien.

Before registering, the corporation gives a Notice of Lien, and if the arrears are not paid within 10 days it can register the certificate. A Notice of Sale Under Lien can follow, with a redemption date 45 days after it is issued. If you still have not paid, the corporation can sue for possession in the Superior Court of Justice and sell the unit.

You can pay everything the lien secures at any point until the unit is sold, and the corporation must then discharge it. Because costs grow along the way, get advice before deciding to hold back payment.

What to do next

• Keep the notice, minutes, budgets and any reserve fund study you receive.
• Write to the board asking for the reason, the calculation and supporting documents.
• Compare the assessment with your declaration, by-laws and rules.
• Note every deadline in any lien notice and do not let them pass.
• Ask a lawyer which forum fits your issue and what paying under dispute would mean.

Frequently asked questions