Ontario's Construction Lien Act
Sun/12/2012 16:03
Individuals who choose to construct their own homes as the “builder” should be aware of the special obligations created by Ontario’s Construction Lien Act.
The Construction Lien Act is legislation that helps to ensure that contractors, subcontractors and workers are paid for the labour and materials supplied in the course of construction and building projects.
Generally, contractors who do not receive payment for their work have 45 days to register a lien against the property. They are then required to initiate a proceeding in court to sustain the lien.
If a contractor hired by a builder invokes the Construction Lien Act, both sides would be required to file pleadings (Statements of Claim and Defence) and attend a mediation/settlement conference. If no resolution is forthcoming, a judge will decide the merits of the claim.
If a Construction Lien Act matter arises, progress advances under a construction mortgage will likely come to a halt until the matter is resolved. This can delay a home construction project if a builder does not otherwise have access to funds to complete the work.
The Construction Lien Act also imposes other obligations on property owners. For example, the Act requires that a percentage of project funds be held back until subcontractors are paid and requires that project funds not be diverted for other purposes (i.e. another construction project).
The Construction Lien Act sometimes comes into play when a builder and contractor have a dispute over the quality of materials or workmanship. A builder who is not satisfied with the quality of materials or workmanship is faced with the prospect of significantly delaying their project if the contractor is not paid in accordance with the construction contract. Despite the protection afforded to contractors in the Construction Lien Act, contractors are required to carry out work using appropriate materials and workmanship.
Time-consuming and costly Construction Lien Act litigation can be averted by ensuring that the builder and contractor execute clear and unambiguous construction contracts which provide for alternative dispute resolution in the event of a disagreement between the builder and contractor.
In considering the construction of a new home, builders must be aware that construction contracts are a special breed of contract because of the implications of the Construction Lien Act.
The Construction Lien Act is legislation that helps to ensure that contractors, subcontractors and workers are paid for the labour and materials supplied in the course of construction and building projects.
Generally, contractors who do not receive payment for their work have 45 days to register a lien against the property. They are then required to initiate a proceeding in court to sustain the lien.
If a contractor hired by a builder invokes the Construction Lien Act, both sides would be required to file pleadings (Statements of Claim and Defence) and attend a mediation/settlement conference. If no resolution is forthcoming, a judge will decide the merits of the claim.
If a Construction Lien Act matter arises, progress advances under a construction mortgage will likely come to a halt until the matter is resolved. This can delay a home construction project if a builder does not otherwise have access to funds to complete the work.
The Construction Lien Act also imposes other obligations on property owners. For example, the Act requires that a percentage of project funds be held back until subcontractors are paid and requires that project funds not be diverted for other purposes (i.e. another construction project).
The Construction Lien Act sometimes comes into play when a builder and contractor have a dispute over the quality of materials or workmanship. A builder who is not satisfied with the quality of materials or workmanship is faced with the prospect of significantly delaying their project if the contractor is not paid in accordance with the construction contract. Despite the protection afforded to contractors in the Construction Lien Act, contractors are required to carry out work using appropriate materials and workmanship.
Time-consuming and costly Construction Lien Act litigation can be averted by ensuring that the builder and contractor execute clear and unambiguous construction contracts which provide for alternative dispute resolution in the event of a disagreement between the builder and contractor.
In considering the construction of a new home, builders must be aware that construction contracts are a special breed of contract because of the implications of the Construction Lien Act.
Pets and Condos
Sat/12/2010 20:42
Can an owner or tenant of a condominium unit have a pet?
It depends.
To find out whether pets are allowed, check out whether the condo has any rules prohibiting pets or restricting pet size. You can refer to the Declaration, Rules or Bylaws of the condo corporation for this information. Prohibitions and restrictions placed on pets by a condo corporation are generally valid (in contrast to bans in apartment buildings). See, for example, this case.
Restrictions usually address the types of pets allowed and size (especially for dogs), as well as the use of leashes, faeces and noise.
Even if your building is "pet friendly" (allows pets) it’s unlikely that you’d be able to keep a pet for long if it creates too much of a disturbance for other occupants. In many cases, the Declaration, Rules and Bylaws in a pet friendly condo will address pets that create a nuisance. For example, the rules might say something like this:
"No owner or occupant of any residential unit shall maintain, keep or shelter any animal, livestock or fowl therein other than a household pet as herein defined For the purpose of this restriction upon the use and occupation of residential units, the term “household pet” shall mean a caged bird, aquarium fish, one (1) domestic cat or one (1) dog not exceeding forty (40) pounds in weight with the sole exception of a guide dog within the meaning of the Blind Person's Rights Act (Ontario) which guide dog may exceed such weight limit, and unless any such household pet becomes a nuisance and causes unreasonable interference with the use and enjoyment by owners of other residential units and the common elements, in which event the Corporation may require the pet owner to permanently remove such pet from the property upon two (2) weeks written notice." (emphasis added)
Put simply, pet owners should refer to the Declaration, Rules and Bylaws to determine whether pets are allows. If you’re a tenant, your landlord would probably have a copy of these documents, or you can get them from the property management office.
What do I do if another occupant’s pet is disturbing me?
If the owner isn’t cooperative, keep detailed notes of any disturbances from the pet. If the condo has a security guard, have them record incidents of excessive noise, etc.
Refer to the Declaration, Rules and Bylaws to find out if pets are allowed or whether there are any restrictions. If pets aren’t allowed, you’ll have a pretty clear case. Even if pets are allowed, the fact that the pet is disturbing your quiet enjoyment of your unit could be cause for action.
The condo’s Board of Directors is responsible for upholding the Declaration, Rules and Bylaws. Find out who sits on the Board and take your complaint to them and the property manager (or have your landlord do so if you’re a tenant). Try getting in touch with the occupants who live above or beside the pet owner and work together with them.
If you have problems with the Board, you will probably have to push back to have them enforce the rules. Again, the Board is responsible for upholding the condo's rules so check the Declaration, Rules and Bylaws first.
It’s also worth noting that the Board might have created rules prohibiting or restricting pets at a certain point in time and that any pets that lived in the building prior to the rule change could have been allowed to stay.
If you’re a tenant, another avenue for addressing noisy pets would be your lease. You're paying rent and are entitled to quiet enjoyment of your unit. Speak to a tenant rights organization to find out what you can do.
The City of Toronto also has a municipal bylaw regarding noise that you might want to consult in addition to the above options.
Please contact us for more information.
It depends.
To find out whether pets are allowed, check out whether the condo has any rules prohibiting pets or restricting pet size. You can refer to the Declaration, Rules or Bylaws of the condo corporation for this information. Prohibitions and restrictions placed on pets by a condo corporation are generally valid (in contrast to bans in apartment buildings). See, for example, this case.
Restrictions usually address the types of pets allowed and size (especially for dogs), as well as the use of leashes, faeces and noise.
Even if your building is "pet friendly" (allows pets) it’s unlikely that you’d be able to keep a pet for long if it creates too much of a disturbance for other occupants. In many cases, the Declaration, Rules and Bylaws in a pet friendly condo will address pets that create a nuisance. For example, the rules might say something like this:
"No owner or occupant of any residential unit shall maintain, keep or shelter any animal, livestock or fowl therein other than a household pet as herein defined For the purpose of this restriction upon the use and occupation of residential units, the term “household pet” shall mean a caged bird, aquarium fish, one (1) domestic cat or one (1) dog not exceeding forty (40) pounds in weight with the sole exception of a guide dog within the meaning of the Blind Person's Rights Act (Ontario) which guide dog may exceed such weight limit, and unless any such household pet becomes a nuisance and causes unreasonable interference with the use and enjoyment by owners of other residential units and the common elements, in which event the Corporation may require the pet owner to permanently remove such pet from the property upon two (2) weeks written notice." (emphasis added)
Put simply, pet owners should refer to the Declaration, Rules and Bylaws to determine whether pets are allows. If you’re a tenant, your landlord would probably have a copy of these documents, or you can get them from the property management office.
What do I do if another occupant’s pet is disturbing me?
If the owner isn’t cooperative, keep detailed notes of any disturbances from the pet. If the condo has a security guard, have them record incidents of excessive noise, etc.
Refer to the Declaration, Rules and Bylaws to find out if pets are allowed or whether there are any restrictions. If pets aren’t allowed, you’ll have a pretty clear case. Even if pets are allowed, the fact that the pet is disturbing your quiet enjoyment of your unit could be cause for action.
The condo’s Board of Directors is responsible for upholding the Declaration, Rules and Bylaws. Find out who sits on the Board and take your complaint to them and the property manager (or have your landlord do so if you’re a tenant). Try getting in touch with the occupants who live above or beside the pet owner and work together with them.
If you have problems with the Board, you will probably have to push back to have them enforce the rules. Again, the Board is responsible for upholding the condo's rules so check the Declaration, Rules and Bylaws first.
It’s also worth noting that the Board might have created rules prohibiting or restricting pets at a certain point in time and that any pets that lived in the building prior to the rule change could have been allowed to stay.
If you’re a tenant, another avenue for addressing noisy pets would be your lease. You're paying rent and are entitled to quiet enjoyment of your unit. Speak to a tenant rights organization to find out what you can do.
The City of Toronto also has a municipal bylaw regarding noise that you might want to consult in addition to the above options.
Please contact us for more information.
Consequences of Backing out of an Agreement of Purchase and Sale
Thu/11/2010 19:45
Sometimes a buyer is unable to complete the purchase of a property after signing the Agreement of Purchase and Sale.
Since the Agreement of Purchase and Sale is a legally binding contract there are a number of possible considerations that a buyer should consider in these circumstances.
The Deposit
The Agreement of Purchase and Sale may directly address what happens to the deposit if the buyer defaults. If the Agreement of Purchase and Sale does not address this issue, a court will likely find that the seller is within his or her right to keep the deposit amount.
Damages
If the matter went to court, the buyer who backed out of a deal after signing the Agreement of Purchase and Sale could be required to compensate the seller for expenses that he or she incurred because of the buyer backing out of the deal.
This could include the costs of having to put the property back on the market, moving expense and other immediate expenses that the seller incurred because of the buyer’s default.
The buyer could also be liable for a host of other expenses incurred by the seller. For example, if the seller agreed to buy another property on the basis of having sold his or her existing home, the defaulting buyer may be liable for the deposit amount and any other expenses incurred as a result of the seller having to back out of this subsequent purchase.
Although a court is unlikely to order the buyer to complete the transaction (compel the buyer to purchase the house), a defaulting buyer could have to pay the seller thousands of dollars if, for example, the seller is unable to find a buyer and is forced to sell the house at a lower price.
Conclusion
The Agreement of Purchase and Sale is a legally binding contract and a buyer should only make an offer to purchase if they are certain about their ability to close the deal.
Getting a Home Inspection
Fri/10/2010 12:40
Why get a home inspection?
Because a trained eye can point out problems with a home that a typical homebuyer wouldn’t detect on casual observation. With this information, you can make a more informed decision and have an estimate of the required repair expenses, if you choose to purchase the property.
Even when buying a new home (newly constructed), it is still a good idea to get an inspection. Firstly, builders can and do make significant mistakes, which can be identified before the defect results in damage or injury. Secondly, a home inspector can also identify smaller problems that might otherwise go unnoticed (for example, where a builder used the wrong materials, such as the incorrect insulation grade).
Who performs a home inspection?
In Ontario, qualified home inspectors are members of the Ontario Association of Home Inspectors (OAHI) and have obtained the Registered Home Inspectors (RHI) designation. The OAHI also hears complaints and can discipline home inspectors who have breached the Association’s by-laws, Standards of Practice, Code of Ethics or Code of Conduct. The OAHI’s website allows people to search for home inspectors by name, company and region of Ontario.
What does a home inspector do?
A home inspector does an examination of a property's structure and amenities, including the heating, air conditioning, electrical, plumbing, roof, insulation, walls, ceilings, floors, doors, windows and rainwater drainage. An inspection may require an inspector to climb into the attic and tight corners of the home, as well as onto the roof. An inspection will typically not require pulling up the carpet or other flooring, or opening walls. Depending on the property, you may want to ask prospective inspectors whether they inspect for mould, termites, asbestos or the presence of harmful chemicals or environmental contamination (these may be outside of the scope of a typical inspection and may require an inspector with additional training).
The physical inspection will usually take about three hours and the inspector will produce a report outlining any defects in the property and an estimate of the cost associated with repairing it.
How much does a home inspection cost?
Typically, an inspection will cost between $200 and $400, depending on the company and the home’s age, size and amenities.
When should I get an inspection done?
It would be very costly and time-consuming for a buyer to have every prospective home inspected before they made an offer. Instead, a buyer can insist on including a condition in the Agreement of Purchase and Sale which makes a satisfactory home inspection a condition of the deal. This ensures that the buyer can make an offer on a home with the satisfaction that they will not be obliged to follow through with the deal if it turns out that the property is riddled with hidden defects.
Conclusion
When buying a new or resale home, it’s always a good idea to get a home inspection.
