Owners are not allowed to modify the common elements as they please. Though owners have broader rights regarding their individual “units”, the line between “units” and “common elements” can often blur, leading to escalated disputes.
In Carleton Condominium Corporation No. 132 v Newton , an owner installed a new garage door and front slab door with glass panels – though the owner had exclusive use of their garage door and front door, the doors were nonetheless common elements. Section 98 of the Condo Act and the condo’s by-laws required owners obtain the Corporation’s written approval and enter into an alteration agreement with the corporation before altering any common elements. The owner had done neither before they changed the doors.
After the board discovered the installation, it still tried to work out an alteration agreement to provide its approval after-the-fact. However, the parties could not come to an agreement and the corporation brought a compliance application to restore the original doors; the owner countered with an oppression application.
The Court granted the corporation’s application and dismissed the oppression application. This it not a novel outcome and was a predictable result. However, the Court interestingly commented on the Section 98 process and a board’s discretion in considering alteration agreements:
..it is not the function of the court to stand in the shoes of the condominium Board and make decisions about property management issues (such as what modifications to the common elements should be allowed referable to a particular unit). A unit owner must accept the jurisdiction of a condominium board to make decisions about exclusive use common areas and to enforce rules about maintaining a uniformity of appearance of unit exteriors. This is a core function of a condominium Board.
Notwithstanding the Respondent failed to obtain the approval of the Board at any time for the doors he installed in 2020, he was invited subsequently to apply for the Boards approval, which he did, and there followed lengthy negotiations about the modification to his doors. The Board has offered to pay for the new front door and the installation costs. The Respondent has not been treated in a differential or discriminatory manner from other unit owners with similar compliance issues. The Boards uniformity in appearance concerns are objectively reasonable and in the economic interests of unit owners including the Respondent.
This case emphasizes the importance of following proper procedures when seeking to alter common elements. It also highlights the broad discretion of the condo board in considering alteration agreements, uniformity of appearance of the exterior of a property and reminds us that good communication and negotiation can go a long way in resolving conflicts.