An Owner Makes Changes to the Common Elements

A recent court decision, York Condominium Corporation No. 78 v Stein, nicely summarizes the principles that apply when an owner makes changes to the common elements.

In this case, the owner had made substantial renovations to her apartment, which also included some changes to the common elements. For instance, the owner had made changes to electrical and plumbing features, as well as to heating equipment in the apartment, and these were changes to the common elements (in the case of York Condominium Corporation No. 78).

The court noted that the owner had made the changes without complying with Section 98 of the Condominium Act, 1998, which includes the requirements for consent of the Board and for a registered agreement between the condominium corporation and the owner. The court also noted that the changes were a possible threat to safety.

The court granted the condominium corporation full access to the unit (upon 48 hours’ notice to the owner) for the purpose of:

  1. carrying out a full inspection to determine any further unauthorized additions and/or alterations to the common elements;
  2. restoring any such unauthorized additions and/or alterations to the common elements to their original condition;
  3. carrying out a full inspection to determine whether the current state of the Unit poses any risk(s) as provided for in section 92 of the Act.

In my view, some of the key points to take away from this case are as follows:

  1. When an owner renovates a unit, the renovations may include changes to the common elements.
  2. An owner’s changes to the common elements must comply with Section 98 of the Condominium Act. Briefly, the requirements of Section 98 are:
    • Consent of the board;
    • An agreement between the corporation and the owner, registered on title to the owner’s unit;
    • In some cases, involvement of all owners in the approval.
  3. One of the obligations of the condominium corporation is to take reasonable steps to ensure compliance with Section 98.
  4. In each case, the corporation should also consider whether or not the changes could represent any risk to safety.

Read more about changes to common elements in our previous blog post.

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A Board’s Mandate to Make Changes to the Common Elements

A recent Ontario Superior Court decision Mazzilli v. Middlesex offers further insight into Section 97 of the Condominium Act – namely, when it is (and is not) necessary to involve owners in decisions about work on the common elements.

In the Mazzilli case, the Board had approved the following work, without involvement of the owners:

  • Changed the existing wood balcony guards with vinyl siding to a tempered glass/ballast system
  • Changed existing windows, which were a combination of sliders, casement and fixed windows, to vinyl awning windows
  • Changed the existing asphalt shingles to pre-finished steel roofing
  • Changed the existing brick and vinyl cladding to a combination of brick, stone and stucco; including the installation of a product known as Kerlite
  • Changed the existing electric forced heating units in the hallways to gas-fired units
  • Renovations to the interior lobby areas.

Overall, this was a $5 million renovation. One of the owners contested the changes to the common elements, arguing that the work required approval of the owners.

The Court, however, held that all of the work fell within the Board’s repair and maintenance mandate, and did not require involvement of the owners pursuant to Section 97 of the Condominium Act.

The Court decided that the condominium corporation was only keeping up with technology, consistent with advice from the corporation’s engineer. As such, this was all repair and maintenance, even if the result had a “different, more contemporary, aesthetic appearance”.

This decision tells us that changes of appearance do not necessarily require involvement of the owners, as long as the purpose is to replace or repair “old, defective or worn out” common elements, and particularly if the work is recommended by the corporation’s expert. However, I think each case needs to be considered on its own particular circumstances – including any expert advice. In some cases, I think changes of appearance may require owner involvement. But again, it will depend upon all of the circumstances.

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How Does a Condominium Corporation Lease Roof Top Space?

Leasing a condominium’s roof top space, normally to a telecommunications provider, can provide some revenue which can serve to reduce overall common expenses. Once the condominium board has made the decision to lease roof top space to a telecommunications provider, the condominium must then consider the procedural requirements under the Condominium Act.

The roof top typically forms part of the common elements of the condominium. Section 21 of the Condominium Act states that the Corporation may lease a part of the common elements, provided this is authorized by by-law. Accordingly, a by-law authorizing the lease of the roof top will be required prior to entering into the lease.

If a telecommunications provider wishes to lease roof top space from the condominium corporation, it will be because the roof is well situated for their purposes. As a result, the condominium corporation may be approached by other telecommunications providers who wish to enter into additional leases.

We therefore recommend that the by-law not be specific to the particular telecommunications provider. The by-law should contain more general wording allowing the condominium corporation to lease portions of the common element roof, identifying the location of the potential leased areas and all potential purposes for such lease(s). This provides the condominium corporation with the latitude to enter into other telecommunications leases as it wishes.

The by-law authorizing the leasing of the roof top space must be passed by a resolution of the board, confirmed by the majority of all owners at a meeting held for that purpose, and registered prior to it coming into effect.

The proposed roof-top lease should also be carefully reviewed for required revisions. [In our experience, the draft lease from the prospective tenant can often be “slanted” in favour of the tenant.]

The corporation may wish to obtain the assistance of legal counsel, and may also wish to have the corporation’s engineer review and approve the proposed roof-top installations. In most cases, we feel that the tenant should agree to cover the related legal and engineering costs.

One other note: In most cases, the corporation’s non-profit status should not be jeopardized by this sort of lease; but this is something that should be verified in each case with the corporation’s legal counsel and/or auditor.

Our experienced team of condominium lawyers can assist your condominium with any of the required steps to lease your roof top space.

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Election Signs on Condominium Property

It’s municipal election time again in Ontario. Are condominium owners entitled to place election signs on the condominium property? Section 118 of the Condominium Act, 1998 states that condominium corporations must not restrict the access (to the property) of political canvassers – including canvassers for municipal election – but what about election signs?

In the case of federal elections, the placement of signs is regulated by the Canada Elections Act. The Canada Elections Act says that condominium owners have the right to place signs in their units (for instance, in their windows). However, the condominium corporation can still pass rules to establish reasonable restrictions on the sizes (of the “unit signs”), and also to prohibit signs on the common elements.

In the case of provincial or municipal elections, there is no similar law (like the Canada Elections Act) guaranteeing condominium owners the right to place election signs (in their units). So, when it comes to provincial or municipal elections, condominium corporations have the right to prohibit all election signs (ie. by rule).

Condominium corporations of course can also consider a rule to allow election signs (including signs on the common elements), but subject to reasonable restrictions. Note as well that most municipalities have by-laws or regulations that place restrictions on election signs (including their size, permitted locations, and permitted display periods). Any rule would of course also be subject to those municipal restrictions.

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Common Element Alterations by Owners

If an owner wishes to make an alteration to the common elements – say, a landing pad on the roof, for Santa’s sleigh – there are various requirements that apply. Those requirements are as follows:

  1. Under Section 98 of the Condominium Act (“the Act”), the alteration requires consent of the Board and an agreement between the owner and the condominium corporation, registered on title to the owner’s unit. The agreement must deal with certain matters set out in Section 98.
  2. Unless the alteration meets the criteria listed in Section 98(2) of the Act, it may be necessary to involve all owners in the approval process, pursuant to Section 97 of the Act.

[Note 1: If an owner is entitled to an alteration under the Ontario Human Rights Code, this requirement will not apply. However, depending upon the circumstances, an agreement (Item 1 above) might still be appropriate.

Note 2: Even if owner involvement isn’t required in a particular case, it may still be wise to notify owners of the permitted alteration(s).]

  1. The Declaration, By-laws and Rules may contain additional requirements.
  2. Any status certificate subsequently issued in relation to the unit must make reference to the alteration (in paragraph 23 of the certificate).

In our view, a “Section 98 By-law” may be an excellent way to satisfy Items 1 and 2 above, and can save the expense of having to register a separate agreement for each permitted alteration.

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