Thursday, December 10, 2009

Condominium corporation approval for hot tub not needed?

The essential feature of a condominium corporation is its mix of private residential units and common space.  In the Condominium Act, s. 1(1), the common space is called "common elements" which means "all the property except the units"

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


The Rat said...

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.

Chris Jaglowitz @ Ontario Condo Law Blog said...

[...] 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 [...]

manila condominiums said...

This is very useful. Wish I stumbled your site before. Thanks a lot for this valuable information.

Angelo H

Hot Tubs said...

Nice write-up. I just came across your website and would like to tell you that I have certainly appreciated reading your posts. At any rate I'm going to be subscribing to your feed and I hope you write again soon.

Toronto Condominiums said...

With builders understanding how views can be important to prospective purchasers, Toronto condos with unobstructed views definitely have purchasers paying a premium.

Toronto Condominiums

Unknown said...

Took me time to read all the comments, but I really enjoyed the article. It proved to be Very helpful to me and I am sure to all the commenters here! It’s always nice when you can not only be informed, but also entertained! mcl lakeside

Unknown said...

With the pandemic fast approaching, there are a tremendous number of manufactured Hot Tubs on the market. In addition, it can be impossible to tell which one’s the best, specifically when it comes to capital costs. One of the several questions, you’ll have before purchasing a hot tub is How Much Doe It Cost To Run A Hot Tub. Since you might not want to spend your money on a hot tub in the UK only to find out later that it will cost you a tidy sum.

Karen R Rymer said...

I am heartily impressed by your blog and learned more from your article. Thank you so much for sharing with us. Here is the best solution. If you want to look please visit here Capital Gains Tax on Second Property in Canada Here is another informative information.