In 2006, the Ontario Government passed legislation known as the Energy Conservation Leadership Act, 2006 (the “ECLA”). In the interests of promoting energy conservation, the ECLA allows the government to designate, by regulation, goods, services or technologies which may be used under certain circumstances, despite any restrictions imposed at law that would otherwise prevent or restrict their use, except another Act or regulation including a restriction established by a municipal bylaw, a condominium by-law, an encumbrance on real property or an agreement. This definition would appear to be broad enough to cover a condominium’s declaration and rules as well as its by-laws.
In April 2008, Ontario Regulation 97/08 was made under the ECLA. Dubbed the “Clothesline Regulation,” it designates clotheslines, clothestrees, and goods and technologies that have the same purpose as a clothesline or clothestree and no other purpose, and equipment that is necessary for the proper installation and operation of the previously listed items as designated items under the ECLA. These designated items may be used in spite of any restrictions imposed by law provided the use complies with the restrictions contained in the regulation. The restrictions include:
(a) items installed on a building that is used solely for residential occupancy and is a person’s place of residence;
(b) no impediments to safety;
(c) items installed adjacent to the side or rear wall of the building and are useable by a person standing on the ground, standing on a deck or fixed platform accessed directly from the ground floor of the building and that is no higher than the ground floor of the building or standing on a step-stool placed either on the ground or on a deck or fixed platform at ground floor level; and
(d) items installed in an area where the person has an exclusive right of use by virtue of their residency.
What does this mean for condominiums?
1. For condominiums where the exterior walls of the unit, the yard and/or deck form part of the unit (a lot line condominium) and not an exclusive use common element, any provision of the declaration, by-laws or rules which restricts or prohibits clotheslines, clothestrees or similar technologies may be unenforceable, provided the installation complies with the regulations. However, such a termination may need to be made by the Court or an Arbitrator.
2. For condominiums where the exterior walls of a unit, the yard and/or deck are common elements or exclusive use common elements, sections 97 and 98 of the Condominium Act require approval of the board and/or unit owners to such changes. These additional approval requirements would still apply.
3. For high-rise condominiums, due to the ground level limitation in the regulation, there is no impact at this time as safety and other concerns are still being investigated.
In summary, while the ECLA and the “Clothesline Regulation” have laudable objectives, especially keeping in mind that clothes dryers consume a significant amount of energy resulting in greenhouse gas emissions, unit owners and boards should not feel immediately obligated to allow the installation of clotheslines and similar technologies under circumstances where they are not currently permitted under the condominium’s governing documents. Prior to granting such permission, the circumstances of the condominium ownership and its documentation, as well as the specifications of the proposed installation, should be carefully reviewed to ensure full compliance with all relevant legislation.