The battle between the rights of individual unit owners to make changes to the common elements and the rights of Condominium Boards to approve such changes in advance continues.

The last decision of consequence on this issue was Wentworth Condominium Corporation No. 198 v. McMahon. This was the decision in which the Ontario Court of Appeal found that the installation of a hot tub on exclusive-use common elements in a town house project did not constitute an addition, alteration or improvement within the meaning of s. 98 of the Condominium Act.

Recently, changes to the exclusive use common elements of a condominium corporation were considered in a decision of the Ontario Superior Court of Justice. In this case, the unit owner replaced a commercial condominium unit overhead garage door with a wall set with windows. This was an alteration to an “exclusive use” common element area. The permission of the Corporation was not sought nor was it ever granted.

The condominium corporation applied to the court for an order under s. 134 of the Condominium Act requiring the unit owner to restore its unit to its original condition.

The Corporation relied on s. 98 of the Condominium Act and/or similar provision in its Declaration which requires that unit owners obtain permission from the Board before making any “addition, alteration or improvement” to the common elements.

The court considered the definition of “addition” and “improvement” in Wentworth Condominium Corporation No. 198 v. McMahon (the hot tub case) and ruled that the wall set with windows is an “addition” because the wall and windows are “joined to or connected to the property.”

The unit owner claimed that, as an “exclusive use” common element, the garage door was not subject to the ordinary application of s. 98. In support, the unit owner argued that the court must strike a balance between the rights of the individual and the rights of the owners collectively, as discussed in the McMahon decision. The court found that s. 98 is not intended to balance these interests as the wording of the section is clear.

Evidence was lead by the unit owner that the wall and windows addition enhanced the value of the unit. The court reviewed the body of case law on the application of s. 98 and affirmed the principle that it is immaterial whether an addition is pleasing, attractive, useful, or not unsafe. “Where the elected Board concludes that it [i.e. a change] is unacceptable for an area of common elements, which they are elected to govern, their word is final”. (East Gate Essex Condominium Corporation No. 2 v. Kimmerly [2003] O.J. No. 582).

As an elected body, the Board must administer the condominium in the best interest and welfare of the corporation as a whole. The court should not interfere. However, the court cautioned that “the board members must behave reasonably in exercising its responsibility. In that regard, they are required to keep an open mind with respect to applications [for a change to the common elements].” Although the cou

rt ruled in favor of the Corporation by ordering that the unit owner restore the unit to its original design, it required the Board to consider, in good faith, a new application for retroactive permission for the alterations.

CONDO TIPS

  • Condominium corporations must give proper notice to residents before entering units for purposes set out in the Condominium Act and the corporation's governing documents. The notice must be in writing and the timing must be "reasonable". This will depend on the circumstances. For example, the corporation may enter a unit without notice when there is an emergency. Otherwise the notice must be delivered to an owner and/or occupant either: (a) personally; (b) by mail; (c) by fax, email or other method of electronic communication; and/or (d) to the owner's unit or the mail box for the unit. Refer to subsection 47(7) of the Act for more details. The posting of notices on common element bulletin boards, for example, will not constitute proper service, even if it is for regular annual maintenance.
  • As a number of recent TV shows on hoarding illustrate, this is a serious and widespread problem and can be very difficult to deal with. For the safety and comfort of all residents, make sure your condominium corporation has passed a rule prohibiting hoarding. Please give us a call for assistance in preparing an appropriate rule.
  •  If a condominium corporation wishes to add any costs and expenditures to a unit owner's common expenses (i.e. chargebacks, etc.), it must consider the following: First, it is necessary to determine whether the chargeback is permitted under the governing documents and/or the Condominium Act. Second, the corporation must advise the owner in writing that the chargeback has been added to the owner's common expenses and the corporation must specify a reasonable deadline for payment of the chargeback. Third, if payment is not received by that specified deadline, that will constitute a default in the owner's obligation to pay common expenses and the corporation will have 3 months from that date to register a certificate of lien in accordance with the Act.