A recent decision of the Ontario Superior Court provides an important reminder for condominium corporations about delay, fairness, and the proper use of section 98 agreements when owners make changes to common elements.
In WCC No. 21 v. Robertson, the court considered whether a condominium corporation could force unit owners to remove a concrete pad that had been constructed decades earlier on an exclusive-use common element. The corporation brought an application seeking compliance with the Condominium Act, 1998, arguing that the owners should either remove the pad or enter into a section 98 agreement governing the alteration.
Section 98 of the Act requires owners to obtain approval from the corporation before making additions, alterations, or improvements to common elements that are for their exclusive use. These agreements typically allocate responsibility for maintenance, repair, and insurance relating to the alteration.
However, the key issue in this case was timing and conduct.
The evidence showed that the concrete pad had existed for many years and had been visible to the corporation during numerous annual walkthroughs. The court concluded that the corporation had effectively acquiesced to the alteration over time. Because the corporation had knowledge of the pad and failed to take action for such a long period, it was difficult to justify a late attempt to force its removal.
The court also considered equitable doctrines such as laches and estoppel, which can arise where a party delays enforcing its rights and the other party relies on that delay to its detriment. On the facts, the owners had treated the pad as a longstanding feature and there was no evidence that it was unsafe or in poor condition.
Ultimately, the court declined to order removal of the concrete pad. Instead, it crafted a balanced remedy: the owners were ordered to enter into a section 98 agreement with the condominium corporation to formally regulate the alteration going forward.
Key Takeaways for Condo Boards
- Act promptly. If a board becomes aware of an unauthorized alteration to common elements, delay in enforcement may undermine the corporation’s ability to compel removal later.
- Document inspections and concerns. Regular walkthroughs and inspections can become evidence of knowledge or acquiescence if issues are not addressed.
- Consider proportional remedies. Courts may prefer practical solutions, such as requiring a section 98 agreement, rather than ordering removal of a longstanding improvement.
- Ensure consistent enforcement. Selective or delayed enforcement may weaken a corporation’s position and limit reliance on the business judgment rule.
