Part 49 published on 01/02/15
Central air conditioner held to be an exterior alteration
The property in question is a “co-tenancy” composed of lots (referred to as “units”) and shared property. There is a “co-tenancy agreement” governing certain rights and obligations as between the owners of the 61 units.
One of the owners had installed a central air conditioner at ground level, on his unit. The co-tenancy committee claimed that this contravened a provision in the co-tenancy agreement that prohibited exterior alterations without prior written approval of the committee. The dispute was determined by arbitration in accordance with a dispute resolution provision in the co-tenancy agreement. The arbitrator agreed that the air conditioner contravened the provision in the co-tenancy agreement, and ordered its removal.
The owner sought leave to appeal. Leave to appeal was refused. The Court said:
In conclusion, in the court’s opinion, this proposed appeal does not raise a question of law, but rather mixed questions of fact and law and if leave were granted there would be no likelihood of success because the arbitrator’s decision was reasonable. Accordingly, leave to appeal is refused.