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.

Share this:

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.

Share this:

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.

Share this:

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.

Share this:

Owners Share the Good and the Bad (Including Construction Liens)

Maintaining and repairing the common elements is one of the primary obligations of a condominium corporation. Condominium corporations generally retain independent contractors for this work. Unfortunately, a contractual relationship sometimes leads to a dispute. For example, the contractor may feel that the corporation is improperly holding back payment.

If such a dispute arises, one of the contractor’s collection powers is to register a lien against the property. A lien for common element work can be registered against all the condominium units. This is because all units have a shared interest in the common elements.

There are only a few court decisions that illustrate unit owners’ shared responsibility for the amount of a construction lien. One such decision is Associated Mechanical Trades Inc. v. Kurzbauer, a 2008 Ontario Superior Court decision. In this case, a condominium corporation hired a contractor to carry out work on the common elements. As a result of a contractual dispute, the contractor registered a lien against the condominium units.

Under the Construction Lien Act, in order to discharge the lien, the condominium corporation can pay into Court the amount of the lien as security, pending the Court’s decision on whether the contractor is entitled to that amount.

In Kurzbauer, the unit owner sought to pay her unit’s proportionate interest toward the security. The contractor required that the entire amount of the security be paid before the construction lien would be discharged against any individual unit. The owner brought a motion against the contractor.

The Court examined the following issue:

  • Can an individual unit owner pay his or her proportionate interest in the lien, and require the contractor to discharge the construction lien as against his or her unit only?

The contractor argued that the entire security should be paid, because the owners have an “undivided interest” in the common elements, and therefore the security could also not be divided.

The Court ultimately found in favour of the owner, relying on section 14 of the Condominium Act, 1998.  Pursuant to this section, a unit owner can discharge the portion of a lien that is registered against her unit (equivalent to the proportionate interest, not the proportionate contribution) of the unit, as set out in the Corporation’s Declaration.

The Court stated that if each unit owner paid the unit’s proportionate interest toward the security, then the lien claimant would be in no different position than if the lands were not registered as a condominium.

According to the Court, the contractor has “nothing to lose” by vacating the lien against one unit, where the unit owner pays for the unit’s share of the lien. Moreover, it is unreasonable to expect that a single owner can pay the full amount of the lien in a large condominium complex.

I note that section 14 of the Act specifically applies to encumbrances that are registered prior to the Declaration of a condominium corporation.  The Court seems to suggest in the Kurzbauer decision that the “policy” underlying section 14 applies more generally, including to liens registered by contractors after declaration.

Of course, the condominium corporation may arrange to pay for the entire amount of the security, on behalf of the ownership.  If the lien is substantial, the Corporation may need to consider funding options such as: a special assessment, borrowing, or depleting the reserve fund.  The best approach will depend on the facts of each case.

If the corporation is ultimately successful in defending the contractor’s claim, the amount paid for the security would be returned to the Corporation.

Share this: