01/29/2019 – Jurisdiction Ontario
Part 65 published on 01/03/2019
Owner required to enter into Section 98 Agreement in relation to backyard deck
The Respondent owner had installed a large deck on the common elements, in the owner’s backyard. Even though the deck was “removable”, and the owner promised to remove the deck before ever selling the unit, the Court held that an agreement was nevertheless required under Section 98 of the Condominium Act, 1998.
The Court said:
The Respondents maintain that they will remove the deck prior to selling the unit. The deck is portable, and easily removed. Moreover, according to the Respondents, the prior owner of the deck in the adjacent unit was not required to enter into a section 98 agreement while possessing the same deck.
I cannot see the relevance of these points. The section 98 agreement is required for any addition, alteration or improvement. Even if the deck is removable, it is an addition/improvement that requires maintenance, repair and could give rise to potential liability.
Moreover, just because other tenants were able to circumvent the requirements of the Act and Declaration does not mean the requirements have been waived. No doubt, if there was clear evidence to indicate that the Applicant was seeking enforcement purely as a means to harass the Respondents, a court would not likely assist in the request. However, in this case, it is clear that a section 98 agreement is required and the request is more than justified in the circumstances. I do not accept the Respondents’ position that the request has been made by the board purely to harass them.
The Court ordered the owner to either enter into a Section 98 Agreement or remove the deck.
Durham Condominium Corporation No. 43 v. Bradley et al, 2019 ONSC 677