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A Board's Mandate to Make Changes to the Common Elements

A Board's Mandate to Make Changes to the Common Elements

by James M. Davidson on January 19, 2016

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.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2016 Nelligan O’Brien Payne LLP.