23/06/2025– Jurisdiction Alberta
Part 91 published on 01/09/2025
Developer obligated to pay common expenses. Appeal dismissed.
Under the condominium corporation’s by-laws, the Developer was not obligated to pay common expenses (for units owned by the Developer) until 90% of the units had been occupied or sold by the Developer. Based upon the by-laws, the condominium corporation had claimed that the Developer owed certain common expenses. The Developer disputed such claims, arguing that less than 90% of the units had been occupied or sold at the relevant times.
The lower Court held as follows:
- The word “occupied”, in the condominium corporation’s by-laws, means something less than a unit having a building that was occupied or owned.
- Section 47(1)(7)(c) of the Condominium Property Actrefers to “occupier” of common property as including bare land units. This is further confirmation that occupation can be less than a constructed building.
- The word “occupied” simply means that the unit was being used.
- Based upon these principles, the lower Court found that more than 90% of the units had been occupied at the relevant times, and that the common expenses in question were owed by the Developer.
The Developer appealed. The appeal was dismissed by the Court of Appeal. The Court of Appeal said:
The arguments made before this Court are similar to those made before the chambers justice. We will not repeat the reasons given by the chambers justice for finding that a building need not have been constructed for units to be occupied. The chambers justice referred to numerous provisions in the By-Laws and relevant sections in the Condominium Property Act in reaching her conclusion on the meaning of “occupied” and how it operates relative to fees for a developer. The By-Laws provide that a developer should not have to pay condo fees while they are expending resources and money to construct a building and receiving no monetary return from the land under development. However, where there are no plans for further development or further “initial stages of development”, and the developer is receiving or able to receive rent from property they are no longer developing. They should pay fees for expenses relating to their property.
Units without buildings are defined as bare land units in section 1(1)(b) and (y)(ii) of the Condominium Property Act. By-Law 47(i) does not refer to units “with a building” but units “occupied”. We agree with the chambers justice that one can occupy a unit of a condominium plan without there being a building on the unit. This is especially so in the circumstances of this condominium plan which is a commercial development where the appellants are renting units which include bare land for storage and other units that are parking stalls without a building.
We find no error in the chambers justice’s conclusion that By-Law 47(i)(iii) creates an exemption for the developer from paying condo fees unless there is an occupied building on the unit. But the exemption ends once 90% of the units are sold or occupied.
Ferchoff v Condominium Corporation No. 1412788, 2025 ABCA 227- Condo fee was applicable