Part 44 published on 01/11/13
Amendment to Declaration to increase threshold for owners’ approval of common element changes upheld; but solarium still gets to stay
The Syndicat is comprised of 82 units. The owners (Audet-Clavel) installed a solarium on their exclusive use area in 2008. Subsequent to the installation, a meeting of the owners was called to vote on proposed amendments to the Syndicat’s governing documents, including, among other things, increasing the threshold for owners’ approval of installations upon the common elements, and a vote on whether the Audet-Clavel’s solarium must be removed. The proposed amendments to the governing documents were approved by the owners. The owners also voted in favour of requiring the removal of the Audet-Clavel’s solarium. The Audet-Clavel’s brought the matter to the Court. The Audet-Clavels argued that the increased threshold for approval would effectively make it impossible for new requests for modifications to be approved, and took the position that the amendments were an abuse of process.
The Court found that the amendments to the Syndicat’s governing documents were lawful. However, the Court did overturn the decision of the owners in relation to the solarium. The Court found that the governing documents in force at the time of the installation of the solarium did not prohibit the installation, and the amendments to the governing documents could not be applied retroactively.