Part 18 published on 01/05/07
Window replacement project required majority approval from owners, but not 80% approval (non substantial change)
The condominium corporation entered into a contract for replacement of the exterior windows and installation of new aluminum panels, at a total cost of just over $4,000,000. One of the owners asserted that the project involved a substantial change requiring an 80% vote of the unit owners.
The Court said that the essential purpose of the project fell within the definition of “maintenance”. The existing windows were ancient and obsolete and were in the process of wearing out. The Court said: “The only way to preserve and prevent a decline in the condition of the windows is to replace them.”
The Court noted, however, that the window replacement project did involve some “changes”. The Court said: “One difficulty in this case is that the windows are not being replaced precisely as they were and there are some changes.” Some of these changes were necessary in order to comply with new codes or standards. These were necessary aspects of the maintenance. The Court said: “[The windows] need to be replaced with better and more expensive windows in order to comply with the Building Code. There is no avoiding that. If [the condominium corporation] is to properly fulfill the statutory duty of maintenance that much is inevitable. However, I am not satisfied that all of the changes and improvements inevitably flow from the act of maintenance.”
The Court accordingly found that certain changes went beyond “maintenance”, and therefore required a vote of the owners. Those changes were as follows:
- change to tinted glass;
- change to the colour of the window panels;
- rigid insulation added as a backer for the panels; and
- new windows of a different type, style and quality.
(“The number of panes is reduced; they are awning rather than sliding; they are dual rather than single pane; they have additional thermal features.”)
The Court then considered whether or not these changes were “substantial” (requiring an 80% vote) or “non-substantial” (requiring a majority vote). The Court concluded that these were not “substantial” changes because the proposed work did not materially change the manner in which the common elements were used or enjoyed.
The Court accordingly ordered that the window replacement contract be approved by a majority vote of the unit owners.
[Editorial comment: I wonder why the Court ordered that the entire window replacement contract be subject to owner approval. It seems to me that the owners should only be called upon to approve the “changes” and the Board should otherwise be permitted to proceed with the purely “maintenance” aspects of the contract, without owner approval ]