The Condominium Act, 1998

PART V, Sections 78 to 83

SALE AND LEASE OF UNITS

(1) Every agreement of purchase and sale of a proposed unit entered into by a declarant before the registration of the declaration and description that creates the unit shall be deemed to contain the following covenants by the declarant:

1. If the proposed unit is for residential purposes, a covenant to take all reasonable steps to sell the other residential units included in the property without delay, except for the units that the declarant intends to lease.

2. A covenant to take all reasonable steps to deliver to the purchaser without delay a deed to the unit that is in registerable form.

3. A covenant to hold in trust for the corporation the money, if any, that the declarant collects from the purchaser on behalf of the corporation.

(2) The covenants shall be deemed not to merge by operation of law on delivery to the purchaser of a deed that is in registerable form.

Compliance order

(3) If the declarant breaches a covenant described in subsection (1), the purchaser under the agreement of purchase and sale may make an application for an order under section 134 and an order may be made under that section.

Section 79.

(1) A declarant who has entered into an agreement of purchase and sale of a proposed unit shall take all reasonable steps to complete the buildings required by the agreement subject to all prescribed requirements and to register, without delay, a declaration and description in respect of the property in which the proposed unit will be included.

No right to terminate

(2) Despite any provision to the contrary in the agreement of purchase and sale, the declarant is not entitled to terminate an agreement of purchase and sale of a proposed unit by reason only of the failure to register the declaration and description within a period of time specified in the agreement, unless the purchaser consents to the termination in writing.

Application to court

(3) Despite subsection (2), if a declaration and description have not been registered, the declarant may, upon 15 days written notice to the purchasers of all proposed units in the property affected by the declaration and description, make an application to the Ontario Court (General Division) for an order terminating the agreements of purchase and sale of the purchasers.

Subsequent registration

(4) The court may, in the order, provide that a declaration and description shall not be registered in respect of the property in which the proposed units will be included during a period specified in the order.

Considerations

(5) On an application for an order, the court shall consider whether,

(a) the declarant has taken all reasonable steps to register a declaration and description;

(b) a declaration and description can be registered within a reasonable period of time; and

(c) the failure and inability to register a declaration and description is caused by circumstances beyond the control of the declarant.

(6) The order is ineffective until a certified copy of it is registered.

Section 80.

(1) An agreement of purchase and sale may permit or require interim occupancy of a proposed unit.

Definition

(2) In this section, "interim occupancy" means the occupancy of a proposed unit before the purchaser receives a deed to the unit that is in registerable form.

Right to pay in full

(3) Despite any provision to the contrary in the agreement of purchase and sale, before the expiry of the time period mentioned in subsection 73 (2) for rescinding the agreement, a purchaser may elect to pay in full, on assuming interim occupancy of the proposed unit, the balance of the purchase price remaining after deducting the amounts paid under the agreement before assuming interim occupancy.

Occupancy fee

(4) If the purchaser assumes interim occupancy of a proposed unit or is required to do so under the agreement of purchase and sale, the declarant may charge the purchaser a monthly occupancy fee which shall not be greater than the total of the following amounts:

1. Where applicable, interest calculated on a monthly basis on the unpaid balance of the purchase price at the prescribed rate.

2. An amount reasonably estimated on a monthly basis for municipal taxes attributable to the unit.

3. The projected monthly common expense contribution for the unit.

(5) If the declarant charges the purchaser a monthly occupancy fee for interim occupancy of a proposed unit for residential purposes for longer than six months and the monthly occupancy fee includes a projected contribution to the reserve fund of the corporation, then, with respect to the occupancy fee for each month after the sixth month, the declarant shall hold in trust and remit to the corporation upon registering the declaration and description the portion of the monthly occupancy fee that represents the projected contribution to the reserve fund.

Rights and duties of declarant

(6) If a purchaser assumes interim occupancy of a proposed unit, the declarant,

(a) shall provide those services that the corporation will have a duty to provide to owners after the registration of the declaration and description that creates the unit;

(b) shall repair and maintain the proposed property and the proposed unit in the same manner as the corporation will have a duty to repair after damage and maintain after the registration of the declaration and description that creates the unit;

(c) has the same right of entry that the corporation will have after the registration of the declaration and description that creates the unit;

(d) may withhold consent to an assignment of the right to occupy the proposed unit;

(e) may charge a reasonable fee for consenting to an assignment of the right to occupy the proposed unit; and

(f) shall, within 30 days of the registration of the declaration and description that creates the unit, notify the purchaser in writing of the date and instrument numbers of the registration, unless within that time the purchaser receives a deed to the unit that is in registerable form.

(7) The rights and duties described in subsection (6) apply despite any provision to the contrary in the Landlord and Tenant Act.

Refund of municipal taxes

(8) The declarant shall, on delivering to the purchaser a deed that is in registerable form or as soon as is practicable after delivery, refund to the purchaser the portion of the monthly occupancy fee that the purchaser has paid on account of municipal taxes attributable to the proposed unit in excess of the amount actually assessed against the unit.

Municipal taxes payable

(9) If the portion of the monthly occupancy fee that the purchaser has paid on account of municipal taxes attributable to the proposed unit is insufficient to pay the amount actually assessed against the unit, the declarant may require the purchaser to pay the difference between the two amounts.

Non-application

(10) The Rent Control Act, 1992 does not apply to interim occupancy and monthly occupancy fees charged under this section.

(11) On the day section 213 of the Tenant Protection Act, 1997 comes into force, subsection (7) is repealed and the following substituted:

Application of Tenant Protection Act, 1997

(7) The rights and duties described in subsection (6) apply despite any provision to the contrary in the Tenant Protection Act, 1997.

(12) On the day section 218 of the Tenant Protection Act, 1997 comes into force, subsection (10) is repealed and the following substituted:

Non-application

(10) Sections 94, 95, 96, 107, 108 and 109 and Part VI of the Tenant Protection Act, 1997 do not apply to interim occupancy and monthly occupancy fees charged under this section.

Section 81.

(1) A declarant shall ensure that a trustee of a prescribed class or the declarant's solicitor receives and holds in trust all money, together with interest earned on it, as soon as a person makes a payment,

(a) with respect to reserving a right to enter into an agreement of purchase and sale for the purchase of a proposed unit;

(b) on account of an agreement of purchase and sale of a proposed unit; or

(c) on account of a sale of a proposed unit.

(2) Subsection (1) does not apply to money received,

(a) on account of the purchase of personal property included in the proposed unit that is not to be permanently affixed to the land; or

(b) as an occupancy fee under subsection 80 (4).

(3) If a person has paid money to reserve a right to enter into an agreement of purchase and sale for the purchase of a proposed unit and subsequently enters into such an agreement with the declarant, the declarant shall, on entering into the agreement, credit the money received to the purchase price under the agreement, despite any provision of the agreement.

Trustee

(4) Upon receiving money that is required to be held in trust under subsection (1), a trustee of a prescribed class shall hold the money in trust in a separate account in Ontario designated as a trust account at a bank listed in Schedule I or II to the Bank Act (Canada), a trust corporation, a loan corporation, a credit union or a Province of Ontario Savings Office.

Declarant's solicitor

(5) Upon receiving money that is required to be held in trust under subsection (1), the declarant's solicitor shall hold the money in trust in a trust account in Ontario.

Evidence of compliance

(6) Within 10 days of the payment of the money under subsection (1), the declarant shall provide to the person who paid the money written evidence, in the form prescribed by the Minister, of compliance with subsection (1) and one of subsections (4) and (5).

Duration of trust

(7) Despite the registration of a declaration and description, the person who holds money in trust under subsection (1) shall hold it in trust until,

(a) the person holding the money in trust disposes of it to the person entitled to it, where the disposal is done in accordance with this Act and an agreement that the person who paid the money has entered into with respect to the proposed unit; or

(b) the declarant ensures that security of a prescribed class is provided for the money, except if the money has been received under clause (1) (a) and has not been credited to the purchase price under the agreement.

Section 82.

(1) The declarant shall pay interest at the prescribed rate to the purchaser on all money that a person pays on account of the purchase price of a proposed unit or that the declarant credits to the purchase price of a proposed unit.

Money released from trust

(2) The interest is payable on the money even if, under clause 81 (7) (b), the declarant provides security of a prescribed class for the money.

Calculation

(3) The interest shall be calculated from the day the person pays the money received until the day the proposed unit is available for possession or occupancy in accordance with the purchaser's agreement of purchase and sale with the declarant.

Time of payment

(4) The interest shall be paid to the purchaser by way of payment or set-off,

(a) on the day the declarant delivers to the purchaser a deed to the proposed unit that is in registerable form, if the declarant so elects; or

(b) on the day the proposed unit is available for possession or occupancy in accordance with the purchaser's agreement of purchase and sale with the declarant, otherwise.

(5) A declarant who elects to pay the interest to the purchaser on the day of delivering to the purchaser a deed to the proposed unit that is in registerable form shall, on that day, pay interest to the purchaser at the prescribed rate on the interest that the declarant is required to pay under subsection (1).

Calculation

(6) The declarant shall pay the interest payable under subsection (5) from the day the proposed unit is available for possession or occupancy in accordance with the purchaser's agreement of purchase and sale with the declarant until the day of payment.

Terminated agreements

(7) If an agreement of purchase and sale provides that a purchaser is entitled to a return of money paid under the agreement upon termination of the agreement and the agreement is terminated, the declarant shall pay interest at the prescribed rate to the purchaser on the money returned.

Excess interest

(8) The declarant is entitled to the excess of all interest earned on money held in trust over the interest it is required to pay under this section.

(1) The owner of a unit who leases the unit or renews a lease of the unit shall, within 30 days of entering into the lease or the renewal, as the case may be,

(a) notify the corporation that the unit is leased;

(b) provide the corporation with the lessee's name, the owner's address and a copy of the lease or renewal or a summary of it in the form prescribed by the Minister; and

(c) provide the lessee with a copy of the declaration, by-laws and rules of the corporation.

(2) If a lease of a unit is terminated and not renewed, the owner of the unit shall notify the corporation in writing.

Record of notices

(3) A corporation shall maintain a record of the notices that it receives under this section.