In a recent decision of the Ontario Superior Court, an owner who modified an exclusive use common element without authorization was found to have breached the Condominium Act. Furthermore, the Limitations Act – which generally gives an applicant only two years to start court proceedings – was held not to apply to such a case.
A previous owner of the unit had installed a balcony enclosure without obtaining approval from the Board of Directors. The new owner removed the windows from the enclosure, but kept the window frames on the balcony.
An engineering firm retained by the Board of Directors concluded that the window frames did not meet Building Code standards and posed a safety concern. The owner was given the opportunity to rectify the safety concerns or to remove them.
However, the owner refused to remove them. He argued:
- The window frames did not pose a safety hazard;
- Their installation was not a violation of the Declaration as it was not a structural change to the common elements and did not constitute maintenance, decoration, or repair or a change to an existing installation; and
- The Condominium Corporation had “slept on its rights” and, due to the provisions of the Limitations Act, should not now be permitted to require the removal of the window frames.
Justice Broad ruled against the owner, and ordered that the Condominium Corporation be permitted to remove the window frames.
First, the Court held that it was not necessary to determine whether the window frames violated the Declaration as their installation breached section 98 of the Condominium Act. Section 98 requires an owner who wants to make a change to a common element (including an exclusive use common element like a balcony) to enter into an agreement with the Condominium Corporation that is registered on the unit’s title.
Second, the Court held that where there is a breach of a statute (such as the Condominium Act), the Limitations Act does not apply. Furthermore, the Declaration contained a provision that a failure to take action to enforce any provision of the Condominium Act, the Declaration, Bylaws, or Rules did not constitute a waiver of the right to do so thereafter.
Finally, the Court noted that the Condominium Corporation in any event had not “slept on its rights”: it launched the Application to remove the window frames once it became clear that the owner would not cooperate in removing them.
This case shows that a Condominium Corporation may have the ability to force an owner to undo an unapproved change to an exclusive use common element (such as a balcony) even if many years have passed since the change was made, and even if the change was made by a previous owner. Furthermore, an owner who refuses to undo such a change could be forced to pay the Condominium Corporation’s legal fees!