Typically, the common elements of a condominium corporation are divided into two categories – areas which can be used by all of the owners (for example, lobbies, driveways, garages and guest facilities) and areas reserved for the use of only one owner (for example, the patio or lawn area immediately contiguous to a unit).
Section 98(1) of the Condominium Act requires that an owner obtain the approval of the condominium corporation's board of directors if the owner seeks to "make an addition, alteration or improvement to the common elements" of the corporation.
Do you need permission to put a hot tub on a common area reserved for your use as an owner?
Apparently not. See Wentworth Condominium Corporation No. 198 v. McMahon, 2009 ONCA 870:
[11] The condominium corporation made an application seeking, inter alia, the permanent removal of the hot tub. The application judge considered the matter in the context of s. 98(1) of the Condominium Act. He reviewed relevant case law and dictionary definitions of "add", "alter" and "improve". This led him to define the pivotal words of s. 98(1) in this fashion:
Therefore, I find that the word "addition" means something that is joined or connected to a structure, and the word "alteration" means something that changes the structure.
I find that the word "improvement" means the betterment of the property or enhancement of the value of the property. I also accept that an "improvement" refers to an improvement or betterment of the property. That is, to be an improvement there must be an increase in the value of the property. If the item increases the enjoyment of the property, but does not increase the value of the property, I find that the item is not an improvement. [Emphasis in original.]
[12] Applying these definitions to McMahon's hot tub, the application judge reached these conclusions:
The hot tub is not an addition as it is not something that sensibly can be seen as being joined to or connected to the structure. It is connected by an electrical cable, but the purpose of the electrical cable is to supply power to the hot tub, not to fix the hot tub to the structure. Furthermore, even though it may take a half-hour and two men to move, the hot tub is still designed to be removed from the property. It is not a permanent fixture on the property.
The hot tub is not an alteration as it does not change the structure of the property. The hot tub may alter the landscape, but any such alteration does not cause any permanent change to the structure.
The hot tub is not an improvement as it does not increase the value of the condominium unit. It is not a fixture that is so attached to the property that it becomes a part of the property. Thus, it cannot increase the value of the property.
[13] Accordingly, the application judge concluded that "McMahon does not require the approval of the board to place the hot tub in the exclusive use common element area on his patio." He dismissed the condominium corporation's application.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
8 comments:
The reason behind that regulation is to prevent damage to common property by stupid owners lacking construction skills and common sense. If it is a mobile hot tub, and has no connection except electrical then maybe that's fine. However, did the hot tub need a higher amp service or is it just plugged into a wall socket? Is it a fire hazard? Where will the water go should it leak? Will it enter a suite below? Would that leak be the owner's responsibility or the Strata's? Or if he installs it on a balcony could it over stress the balcony and lead to a collapse?
The strata corporation has reasonable interests in this and a narrow definition of "improvement" may now lead to real danger. My experience on a strata board leads me to believe many owners are too stupid to be trusted to use judgment on an issue like this. In a detached house they only hurt them self but in a strata they may hurt everyone financially.
[...] Morton shows us the guts of the Ontario Court of Appeal’s decision in the famous hot tub case of 2009, WCC 198 v. McMahon [...]
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