Ontario condominium corporations are now left in uncertainty over their power to restrict changes made to common elements of individual units. The purpose of section 98 of the Condominium Act, 1998 is to prohibit unit owners from making changes to the common elements of their condos unless they receive permission from the Board of Directors. Condominium corporations have no obligation to give consent to unit owners to make changes to the common elements. Section 98 states that “an owner may make an addition, alteration or improvement to the common elements” if the Board provides approval. This provision should, in theory, give the Board complete control over changes made to the common elements of condominium units. The uncertainty derives from the question of what constitutes an addition, alteration or improvement. The ambiguity in the answer shifts the balance of decision making power slightly away from the Board and closer to the individual unit owners.
On November 9, 2009, when faced with the question of whether or not a hot tub qualifies as an addition, alteration or improvement, the Ontario Court of Appeal affirmed definitions to these three terms in the case of Wentworth Condominium Corp. No. 198 v. McMahon. Condominium unit owner, McMahon, placed a hot tub on his common element yard appurtenant to his unit without permission or approval from the Board. The Board made an application seeking removal of the hot tub on the basis that it was a change to the common elements. The Superior Court determined, after considering section 98, that the hot tub was not an addition, alteration or improvement to the common elements. To clarify this point, the Court stated that an “addition” is something that is joined or connected to a structure, an “alteration” is something that changes the structure, and an “improvement” is the betterment of the property or enhancement of the value of the property. Since the hot tub is not connected to the property and it does not directly change the structure of the property it cannot be deemed an addition or alteration, respectively.
Furthermore, the hot tub does not improve the property or enhance its value as it can easily be removed by McMahon if he so chooses. Therefore, according to the Superior Court, the hot tub did not qualify as something that requires approval by the Board and McMahon was able to keep the hot tub. The Court of Appeal affirmed this decision and further stated that the definitions “provide a valuable starting point” for decisions relating to section 98 of the Act.
If the McMahon reasoning is the starting point for these types of cases, all future changes to condominiums should follow precedent. The case of Metropolitan Toronto Condominium Corp. No. 985 v. Vanduzer was decided a mere three months after McMahonm on February 9, 2010 with a different result. This case had a similar fact pattern whereby the unit owner, Vanduzer, had a gazebo erected on her common element terrace appurtenant to her unit against the permission of the Board. Vanduzer argued that since the gazebo was not attached to the terrace, it should not be considered an addition to the common elements, which by the definitions affirmed in McMahon would be an accurate statement. Instead, the Court concluded that the gazebo was an addition and ordered Vanduzer to remove the gazebo from the common elements of her unit. Why was Vanduzer’s gazebo considered an addition to the common elements while McMahon’s hot tub was not?
The hot tub in McMahon was a free-standing six feet wide, seven feet long self contained unit. It was not attached to the common elements in any structural way. Its only connection to the unit is the cord that provided it with electricity. Vanduzer’s gazebo, on the other hand, although not actually attached to the unit was considered an addition. The difference was in the installation. Vanduzer had the gazebo installed incorrectly. The manufacturer’s intended installation of the gazebo clearly stated that, for structural reasons, it must be attached to the ground. The Court concluded that if Vanduzer had correctly installed the gazebo, it would have fallen under the definition of an addition and would therefore be considered a change which would require Board approval.
The Court also considered that the condominium corporation has a statutory duty, under section 26 of the Act, to manage the common elements of the building. With this duty comes liability for the safety and protection of other unit owners and guests. The hot tub, installed correctly, posed no danger to other people; while the incorrectly installed gazebo, arguably, could pose a threat to other residents.
There are some lessons to be taken from these two cases. By definition, an individual condominium unit holder has no right to make changes to the common elements of their unit. They have, however, gained more flexibility in what is a restricted change. McMahon may have opened a loophole for unit holders to rely on to evade the restrictions stated in section 98 of the Act. As long as the change does not fall within the definitions of addition, alteration or improvement, the unit owner is able to do as he or she pleases. Additions such as barbeques, picnic tables, or even small inflatable pools should be permitted. Some may argue that Vanduzer closed this loophole; but, the Court in Vanduzer actually used the definitions in the way they were intended. The gazebo should have been attached to the ground. If it were, it would have been an addition. Incorrect installation of an object will not fool the Court into allowing prohibited changes. The power of the condominium corporation to restrict changes to common elements may have been slightly narrowed, but the power of the courts to ensure proper application of the law is as strong as ever.
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