Jason Bryk 

Phone: 204.956.3510

Fax: 204.957.0227

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Another quality Sunrex project 238 Portage Avenue Condominium.  Marketed by Colliers the development is sure to impress and will provide another boost to Winnipeg’s downtown.

 

 

 

 

 

 

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Are you ready?

 

Is your condominium corporation's disclosure package up to date?

 

Are you a developer ? Is the disclosure package your agents are using adequate to commence the cooling off period?

 

Are you a real estate agent? Is your sale secure?

 

The documents you need to commence the cooling off period differ depending on the condominium unit you are selling.

 

By way of example the documents differ depending on whether or not the sale is of a proposed unit, the sale is of a unit after registration of the condominium declaration, condominium initial by-law or by-law number 1, and the condominium plan.  There are also a number of additional requirements buried with the Regulations to The Condominium Act.

 

Unsure? The Manitoba Real Estate Lawyer can help get you and your condominium corporation up to date and ensure the sale of your unit is secure.  

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Is someone at your condominium corporation in arrears for payment of common expenses?  The following is a brief introduction to the complex world of condominium liens:

 

If a unit owner fails to contribute to the common expenses or reserve fund, the condominium corporation has a lien against the owner's unit and its share in the common elements for the unpaid amount, the interest owing on the unpaid amount and the reasonable legal costs and expenses incurred by the corporation in collecting or attempting to collect the unpaid amount, including the costs of preparing and registering the lien and its discharge.

 

However, the lien expires three months after the default that gave rise to the lien occurred unless, within those three months, the condominium corporation submits a notice of the lien to the district registrar for registration, in a form approved by the district registrar.

  

The Condominium Act also states that at least seven days before the Lien is registered, the condominium corporation must give the unit owner written notice of the lien.  However, the condominium corporation may register the lien without prior written notice to the unit owner if the corporation is aware that a sale of the unit is pending.

  

Once registered in the relevant land titles office, the condominium corporation has the right to enforce the Registered Lien in the same manner as a mortgage is enforced under The Real Property Act.

 

With respect to priority, the registered Lien has priority over every registered and unregistered encumbrance even though the encumbrance existed before the lien arose; however the lien does not have priority over a claim of the Crown; aclaim for taxes, charges, rates or assessments levied or recoverable under The Municipal Act or The City of Winnipeg Charter; a prescribed lien or claim; a Notice on title about a phased development; a notice on title of proposed phasing amendment; a Notice of amendment to cancel proposed phase or extend time for completion; or a registered instrument referred to in clauses 45(5)(a) to (j) of The Real Property Act.

 

 However, priority is not absolute.

 

On or before the day the Notice is submitted for registration, the condominium corporation must give written notice of the “lien” to each encumbrancer whose encumbrance is registered against the title of that unit and if there is “no notice” the lien loses its priority over an encumbrance.   That being said, the notice can be given late.  If the condominium corporation gives notice of a lien to an encumbrancer after the day the lien is registered, the lien has priority over the encumbrance only to the extent of (a) the arrears of common expenses or reserve fund contributions that accrued during the three months before the day notice is given and that continue to accrue after that day, (b) the interest owing on the arrears, and (c) the reasonable legal costs and expenses incurred by the corporation to collect or attempt to collect the arrears.

 

Condominium liens can prove to be difficult terrain for a condominium corporation to navigate and the notice provisions within The Condominium Act may jeopardize a condominium corporation’s entitlement to priority. 

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Mortgage in default ? Acting on your security ? Before you do be sure to review the Rules For Mortgage Sale and Foreclosure Proceedings Under The Real Property Act before you submit a Notice of Exercising Power of Sale for registration.  The rules are available here: https://www.tprmb.ca/tpr/rg_directives/msfp_rules.pdf   Note, unless the default under the mortgage is a default of principal, interest, taxes or insurance premiums you will need to make a court order declaring the mortgagee may proceed with the sale will be required before an Application for Order of Sale is made to the land titles office. 

 

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The appeal court ordered discharge of a caveat in Laba et al. v. 4027183 Manitoba Ltd. et al., 2014 MBCA 107, finding that it was not open to the motion judge to uphold the caveat on a basis not set out in the caveat itself. Manitoba law is clear, said the court, that if "a claimant has no interest in the land, the caveat cannot be sustained." Given the motion judge's finding that no agreement existed between the parties, the requisite interest in land had not been demonstrated.


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