In a recent case, Cheung v. YCC No. 759, a unit owner in a commercial condominium unsuccessfully challenged the validity of a by-law that allocated/leased 4 common element parking spaces to each unit. Before the enactment of the by-law, parking was on a first-come first-serve basis.
The unit owner who challenged the by-law owned 3 units that were leased to a popular restaurant. Due to the popularity of the restaurant, there wasn’t sufficient parking on the condominium property to accommodate the patrons of all of the units. The restaurant customers were using the bulk of the parking spaces to the detriment of the other unit owners.
The unit owner claimed that the by-law was invalid and that it was oppressive and discriminatory.
The owner’s claim that the by-law was invalid was based on the premise that the condominium declaration did not provide for any exclusive use common elements and that there was no provision in the Condominium Act or the declaration that specifically gave the board the authority to lease any of the common elements to the unit owners. This position failed as the Judge determined that there was no provision in the declaration that prohibited the leasing of the common elements to unit owners and that there was no need for a provision that specifically authorized it.
The unit owner’s claim that the by-law was discriminatory also failed. Because each unit owner was allocated four spaces per unit, all unit owners were treated the same. There would be discrimination only if the by-law imposed different prohibitions or obligations on one single unit owner.
The Judge also declared that the by-law was not oppressive against the unit owner. The Judge noted that the unit owner’s expectation that the restaurant patrons should be entitled to use all of the common element parking spaces on a first-come first-serve basis was not a reasonable expectation and that the unit owner’s expectations in this regard were oppressive vis-à-vis the other unit owners. It has been well established in condominium case law that section 135 of the Condominium Act, 1998 (which sets out the oppression remedy) “protects legitimate expectations and not individual wish lists.”
This case illustrates once again, that in a condominium, the board has to balance the interests of all of the unit owners and in doing so, some of the decisions will not please all of the owners.
“Thus, I do not see how the Board’s actions can be called unreasonable. There was a parking problem and it had to be remedied. The Board came up with a solution that it believed would remedy the problems and treat all owners on an equal basis. It is not my job to second-guess the board and substitute my judgment for theirs unless the by-law is clearly unreasonable or contrary to the Condominium Act or the declaration.”