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Common Element Alterations by Owners

Common Element Alterations by Owners

by James M. Davidson on December 19, 2013

If an owner wishes to make an alteration to the common elements - say, a landing pad on the roof, for Santa’s sleigh - there are various requirements that apply. Those requirements are as follows:

  1. Under Section 98 of the Condominium Act ("the Act"), the alteration requires consent of the Board and an agreement between the owner and the condominium corporation, registered on title to the owner's unit. The agreement must deal with certain matters set out in Section 98.
     
  2. Unless the alteration meets the criteria listed in Section 98(2) of the Act, it may be necessary to involve all owners in the approval process, pursuant to Section 97 of the Act.

[Note 1: If an owner is entitled to an alteration under the Ontario Human Rights Code, this requirement will not apply. However, depending upon the circumstances, an agreement (Item 1 above) might still be appropriate.

Note 2: Even if owner involvement isn't required in a particular case, it may still be wise to notify owners of the permitted alteration(s).]

  1. The Declaration, By-laws and Rules may contain additional requirements.
     
  2. Any status certificate subsequently issued in relation to the unit must make reference to the alteration (in paragraph 23 of the certificate).

In our view, a "Section 98 By-law" may be an excellent way to satisfy Items 1 and 2 above, and can save the expense of having to register a separate agreement for each permitted alteration.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2014 Nelligan O’Brien Payne LLP.