A recent decision of the Ontario Superior Court balanced the rights of a condominium owner against the power of his own condo corporation. Who won? I would call it a tie.
Mr McMahon installed a hot tub on the patio area of his condo. He also did some design work, adding a fence, trellis and fountain. His condominium's board said that the hot tub was an "addition, alteration or improvement" pursuant to subsection 98(1) of the Condominium Act and so the unit owner required Board approval to install it, which he applied for but was denied. He also did not get consent to install the fence, trellis and fountain.
The Court considered the meaning of the words "addition", "alteration" and "improvement". The Court decided that the word ‘addition' means something that is joined or connected to a structure and the word ‘alteration' means something that changes the structure. Furthermore, the Court ruled that an ‘‘improvement'' must increase the value of the property, and not just increase enjoyment of the property.
By these definitions, the hot tub was excluded and therefore the owner did not require the Board's permission to install it. However, the Court ordered that the owner had to apply for permission to keep the fence, trellis and fountain.
There is not sufficient detail in the 41 paragraph judgment to explain why the Court thought the fountain was distinctly different from a hot tub. Many small fountains sit on a level surface and operate by a small motor, recycling the water. These features are in common features with the hot tub.
The case is a good example of how a Condo Board's preference for consistency can conflict with a unit owner's desire to make a condo his home. Is it better for a unit owner to ask permission from a fickle Board to do what is his right? Or should he rely on problematic precedents to defend his actions? Law is frequently a matter of risk prevention and my advice in condo matters is for owners to join the Board rather than fight it.
Wentworth Condominium Corporation No. 198 v. McMahon, 2009 CanLII 9764 (ON S.C.) decided 10 March 2009