Part 25 published on 01/02/09
Owner not entitled to keep solarium
A strata owner installed a solarium on her limited common property (the patio in front of her unit) with the consent of the strata corporation and the neighboring resident. The solarium enclosed an exterior window of the neighbour’s unit.
The solarium was constructed without a building permit. After construction of the solarium, the municipality advised that a retroactive building permit could be issued provided the particular window (partly common property and partly a portion of the neighbour’s unit) was replaced with a fire retardant window. The neighbour refused to allow the window to be replaced. The owner of the solarium argued that the window replacement could not be refused (by the neighbour or the corporation) because the solarium had previously been approved.
The Court said that the strata corporation and the neighbour had mistakenly assumed that the solarium was permitted without any change to the neighbour’s unit (i.e. the window). They were not obligated to consent to the window change. The principle of estoppel did not apply.