Part 35 published on 01/09/11
Court orders condominium corporation to reconsider its decision requiring that the owners relocate their shed
The owners had erected a shed in their exclusive-use yard area. Under the corporation’s by-laws, the shed required the consent of the Board; and the owners had not received the Board’s consent.
The Board had prepared guidelines / specifications for sheds. The shed in question met all of the Board’s guidelines, including guidelines respecting size, design and colour. [The guidelines did not include any requirements respecting location of a shed in the yard area, except to say that a shed must be “a minimum of 1 foot away from the Unit or the fence”. The shed in question also met this requirement.] The Board nevertheless required that the shed be moved to a different location in the yard, in order to avoid blocking the sun to the neighbour’s yard. The owner refused to move the shed.
The Court held that the Board’s decision unfairly disregarded the interests of the owners of the shed, in contravention of s.67 of the Condominium Property Act. The Court felt that, given the position of the shed, it would only block the sun of the neighbour’s yard “in a trifling way”. The Court then said:
The board has established guidelines, and although they are not binding, having established guidelines, owners should quite reasonably expect their compliant applications would ordinarily be approved. There may well be valid reasons to vary from the guidelines but in those circumstances an owner is entitled to receive from the Board, at the very least, a rational explanation for the variation… Nothing indicates that there was any attempt to weigh the consequences to the two parties directly affected…
I emphasize that I am cognizant that I should give considerable deference to the Board’s decision and that the guidelines do not bind them. However, based on the material before me, I nonetheless conclude that the Board’s decision and the exercise of its power appears to have unfairly disregarded the interests of the Gobeils. On that basis, I set aside the decision of the Board. Resisting the temptation to substitute my decision, I direct that the board reconsider the Gobeils’ application and provide their decision after given (sic) the matter proper consideration including the opportunity for the Gobeils to respond to other interested parties’ submissions.