Part 24 published on 01/11/08
Common element modifications subject to municipal approval
The Kaufmanns own Unit #8 in the strata corporation. Prior to the Kaufmanns purchasing the unit, unauthorized alterations were made to the attic (common area). [The modifications comprised: A full bedroom/bathroom, a walk-in closet and a small child’s bedroom.]
At a previous Hearing, the parties resolved the dispute, and the terms of the resolution were embodied in a Court order. The resolution contemplated that the areas in question would be leased to the Kaufmanns, with rental payments based upon a particular formula. This arrangement, however, was all conditional upon the modifications receiving appropriate approval from the municipality, including retroactive building permits. It was subsequently discovered that this would require rezoning of the building. The rezoning application would require cooperation of the strata corporation and perhaps also upgrades to the building as a whole.
The Kaufmanns made application to amend the previous order, to require the strata corporation’s cooperation in the municipal application process. The Court refused to grant such an order. The Court said: “I am not persuaded that the order sought by the Kauffmans is warranted. The rezoning sought is well out of proportion to my original order.” “There is a significant disparity in the costs of the strata corporation relative to the benefit to what the Kaufmanns seek, particularly as there is some uncertainty with respect to the rezoning being successful in any event.”