Who Pays Condo Fees on a Deceased Owner's Unit in Ontario?

When someone who owned a condo dies, the monthly fees do not stop. The unit may sit empty for months while the estate trustee gets authority, deals with family, and decides whether to keep or sell it.

This article explains who is responsible for the common expenses during that time, what the condominium corporation can do if they go unpaid, and how a status certificate helps if the unit is sold.

Who pays while the unit is in the estate

On death, a person's real and personal property passes to and vests in the personal representative, also called the estate trustee, who holds it as trustee for the people entitled to it. That includes a condo unit.

Unit owners must contribute to the common expenses in the proportions set out in the declaration. While the unit is in the estate, the estate as owner remains responsible for these fees. How the fees are paid and tracked in practice depends on your situation, so it is worth confirming with a lawyer.

What happens if the fees go unpaid

If an owner defaults on common expenses, the condominium corporation has a lien against the unit and its common interest for the unpaid amount. A lien expires three months after the default that gave rise to it, unless the corporation registers a certificate of lien within that time.

In general terms, a common-expense lien has priority over registered and unregistered encumbrances, subject to listed exceptions. It does not have priority over certain Crown claims, specified municipal taxes and charges, or prescribed liens. How it ranks against a particular mortgage or other claim depends on the facts, so ask a lawyer if the amounts are large.

• Check whether the corporation has sent arrears notices or registered a certificate of lien.
• Ask for a statement of what is owing, including any legal costs the corporation says it is adding.
• Keep proof of every payment the estate makes.

Keeping, selling or paying debts with the unit

Real property is administered like personal property and is liable in the same way for the deceased's debts, costs and expenses, so a unit is available to pay estate debts. An estate trustee can sell estate real property without the beneficiaries agreeing, except where the sale is only for the purpose of distribution.

A sale made only for distribution needs the approval of a majority of the beneficiaries. Where minors or persons under disability are involved, approval of the Children's Lawyer or the Public Guardian and Trustee is needed as applicable. Without that approval the sale is not valid.

If the unit is mortgaged, the beneficiary generally takes it primarily liable for the mortgage debt, unless the deceased showed a contrary intention. A general direction in the will to pay debts does not displace this rule. The mortgage lender also keeps its security against the property.

Getting a status certificate before a sale

A status certificate is a document you can request from the condominium corporation, and it binds the corporation as of the date it is given. A condominium corporation must give one to anyone who requests it. It may charge the prescribed fee and must provide the certificate within 10 days after receiving the request and the fee.

The certificate binds the corporation as of the date it is given. That is why buyers and their lawyers rely on it. Request it early, since the 10 days only start once the corporation has both the request and the fee.

Ontario guidance says probate, meaning a Certificate of Appointment of Estate Trustee from the Superior Court of Justice, is normally required where the deceased owned real property. Where the property must be sold, the certificate should be obtained before anyone enters into an agreement of purchase and sale. Some exceptions exist, and buyers' lawyers set their own requirements, so confirm the approach for your unit.

What to do next

• Find the declaration, recent fee statements and the name of the property manager.
• Tell the condominium corporation who the estate trustee is and where to send notices.
• Apply for the certificate of appointment early if a sale is likely.
• Keep paying common expenses from the estate so a lien does not build up.
• Request a status certificate before listing or signing an agreement of purchase and sale.
• Ask a lawyer about mortgages, arrears and whether beneficiaries must approve a sale.

Frequently asked questions