I'm not saying I agree or disagree with the concept in the proposal - but all financial arrangements would be made clear in the condominium's declaration - so yes any potential buyers are given a clear choice to "decide whether" to contribute or not. This is a complex project and no one is forcing anyone to purchase one of the 2,700 proposed units - should the project contain complex long-term financial arrangements or obligations for owners, those proposed arrangements are a risk that the proponent in this early stage of the project appears to be considering bringing forward to the market. The highly competitive Toronto condo market will ultimately evaluate whether or not to accept those financial arrangements and perhaps this is a risk Mr. Mirvish is willing to incorporate into the project based on a long-term value-proposition of the gallery that his team believes the market will accept and absorb.
As noted earlier by AHK, the condominium declaration is a pretty iron-clad legal agreement that is virtually impossible for owners (especially a project as large and investor driven as this) to alter at a future date unless the legislation is substantially overhauled (certainly a risk of that 90% figure declining somewhat but virtually no chance of it declining significantly).
Some additional background on the Ontario Condominium Act - the Act was last updated in 1998, and was proclaimed (came into force) in May of 2001. The Act is currently under review as part of the next update cycle. A community consultation meeting with government and Ministry staff held in Toronto on September 12. The issue of resolving problems with declarations, being virtually impossible with the 90% threshold was raised. I had also previously raised the issue with Rosario Marchese, the MPP who has been most active on condominium issues. This is a real issue, because declarations are documents prepared by humans, and errors have been made. Once a declaration has been registered, it becomes virtually impossible to correct.
The normal practice when new legislation is proclaimed is that it does not have a retroactive effect - examples are that buildings are built to the building code in effect at the time the building permit is issued, not to the code in effect at the time the building is built, and do not need to be then modified to comply with subsequent changes to the code. Same thing with criminal law - one cannot be tried for an act which was not an offense at the time it was committed, even if subsequent legislation makes it illegal.
With respect to the Condominium Act - there are many issues needing to be addressed. During the Q&A part of the meeting my request to Margaret Best (the Minister responsible for the Condominium Act and sponsoring the review process) was that where possible, consideration be given to making provisions of the new act apply to the governance processes of existing condominiums, and not just to new ones created after the new Act's proclamation.
The entire process of revision to the act, updating the regulations, leading to proclamation and the new Act coming into force is going to be a long one - interesting to see how it all evolves, in particular with the current political situation at Queen's Park.
