Part 37 published on 01/02/12
Owner ordered to reinstate subdivided unit
The owner had divided her “live/work” unit into two areas – one area being a “work” sub-unit, the other a “live” sub-unit. The owner leased the sub-units to different tenants.
The owner had not obtained the Board’s consent to these changes, as required by the Declaration. The owner refused the corporation’s requests that she remove the subdividing wall, and instead sought retroactive approval for the changes. The Board refused consent because of concerns about setting a precedent, and because of concerns for life-safety. There were no separate life-safety systems (smoke detector and heat detector) in the “live” sub-unit. Meeting these life-safety requirements would also require common element changes (needing the corporation’s consent) and the Board was not prepared to give its consent to those changes.
The Court ordered the owner to reinstate the unit. The Court said:
The purpose and effect of the construction work done by Ms. Chan in her unit was to create a distinct commercial unit, separate from the residential portion of the unit. This is contrary to the provisions of the Declaration. In the process of dividing her unit, Ms. Chan has created a situation that represents a potential danger to all residents, as the life-safety equipment remains inadequate. This inadequacy continues to represent an underwriting risk with respect to insurance coverage for the building. These, too, are contrary to the Declaration.
The board acted reasonably in interpreting s. 30 and 34(c) of its Declaration as having been breached by Ms. Chan’s acts. Further, its decision to require Ms. Chan to return her unit to its original state does not amount to an inappropriate favouring of the condominium corporation interests over those of Ms. Chan when viewed in the context of the Board’s statutory obligations and responsibilities to the owners as a whole.
[Editorial Comment: The decision does not contain any discussion of the mandatory mediation and arbitration provisions contained in s. 132 of the Condominium Act, 1998. But given the Court’s clear concerns about life-safety, the Court presumably concluded that mandatory mediation and arbitration did not apply because the dispute concerned a breach of the Condominium Act, 1998 (s. 117).]