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Home COFSAB Forum Finances Meaning & Purpose of a Condo Unrestricted Fund Reply To: Meaning & Purpose of a Condo Unrestricted Fund

  • Karen Bennett

    April 10, 2022 at 10:03 am


    In you questioning my judgement, I would like to point out that there are several Alberta Condominium court cases posted on Canlii Alberta website that refer to court cases in other provinces, including Ontario. For example: The Alberta Court of Queens Bench case of “Condominium Corporation No. 0312235 v. Scott. 2015 ABQB 171” in which the trial judge, in paragraph [27] cited: (1) The Ontario case of “Hamilton (City) v Equitable Trust Co, 201” and, (2) The Manitoba case of “Morguard Properties Ltd v Winnipeg (City), [1983] 2 SCR 493 (SCC).

    The Ontario court case of “Boily v. Carlton Condominium Corporation 145, 2013 ONSC 1467” that I cited mirrors the Alberta Condo Act and its Regulations, regarding our Condo Board’s plan to wrongfully use our corporation’s “Unrestricted /Operating Account” and NOT a special levy, as per Condo Act s. 39.1 (2) (d) & (3), that I have already made you aware of, to replace our existing common property recreational facility that the developer built with a completely different capital project. In the Ontario case, the court ordered the Board to restore the common property to its original form and, for the board to pay costs to the successful owners.

    Also, I have previously identified the applicable sections of the Act and its Regulations to support my position that there must be the passage of a Special Levy and an amendment to the condominium plan in order for our Board to replace the common ground recreation facility that the developer built with a completely different common property ground facility. In return, I would appreciate it very much if you will identify:

    • The applicable sections of: 1) The Act and its Regulations, and/or 2) Court cases, if any, that state that: a) If there are funds available in the “Unrestricted Fund” account, which you think is probably the “Operating Account” and, b) If the board is confident that it has the support of owners, the project can proceed without violating the Act which calls for a “special levy” and the amendment of the condominium plan and,
    • The Fund type identification and, a description of the how the Board can determine it has confidence support of the owners in order for the project to proceed without violating the Act or the Regulations.
    Please spread the word!
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