Part 20 published on 01/11/07
Condominium Board had not acted unfairly in negotiations respecting extended deck
One of the penthouse units in this condominium included a roof-top patio. The roof-top patio had been extended by a previous owner of the unit (with permission of the Board). When the current owner, Langager, purchased the unit, she mistakenly assumed that she had acquired a permanent right to the entire extended deck. In fact, according to the Court, she had no more than a “revocable license” to use the extended deck area.
Having discovered this legal limitation on her right to the extended deck area, the owner entered into negotiations with the condominium corporation with a view to coming to an agreement respecting her continued use of the entire extended deck area. The parties were not able to reach an agreement. Ms. Langager claimed that the Board’s negotiations were oppressive (ie. unfairly prejudicial, or without fair regard, to her interests) because the Board had insisted that the agreement include an indemnification provision whereby Ms. Langager would be responsible to indemnify the condominium corporation against any expenses related to the extended deck area as well as the original exclusive-use patio area. Ms. Langager asserted that the indemnification provision should not apply to the original exclusive-use patio area and that this would be oppressive to her because no other owner in the condominium had similar obligations relating to their exclusive-use patio areas.
The Court dismissed Ms. Langager’s claim. The Court said that there had been no oppression. The Court said that the Board’s negotiations were reasonable. In all of the negotiations, it was clear that Ms. Langager’s responsibilities would relate only to the extended deck area. If the suggested indemnification clause contained words which might be capable of another interpretation, Ms. Langager “merely had to point out to the Board the need for a small clarification of the wording in the indemnity clause and she did not do so. Instead she made significant changes to the agreement and watered down the indemnity clause to something almost unrecognizable.”
The Court concluded that the failed negotiations were not the result of any oppression on the part of the Board.