Part 38 published on 01/05/12
Owners of POTLs ordered to reverse their changes made to the common elements
A number of owners had made landscaping changes to a walkway area that was part of the common elements. Over a number of years, the condominium corporation had demanded that the changes be reversed and ultimately made application under Section 134 of the Condominium Act, 1998 for an order requiring that the changes be reversed. The Court held that the common element changes were made without consent as required by Section 98 of the Act and the corporation’s Declaration, and granted the order. In doing so, the Court held as follows:
- The application was not barred by expiry of a limitation period, even though considerable time had expired since the changes had been made.
- Mandatory mediation and arbitration, under Section 132 of the Act, did not apply, because the dispute related to an alleged violation of the Act (Section 98).
- The application was not precluded by equitable or other defences, including laches or de minimus. [For the defence of laches to apply, the Court said that mere delay is not enough. The Court said: “There needs to be some acquiescence, which there was not”. And the Court held that the changes were not insignificant (so as to allow for the defence of de miniumus).]
The Court nevertheless reduced the costs award in favour of the condominium corporation, because the condominium corporation had chosen to litigate the dispute without pursuing a number of conciliatory opportunities (including mediation) offered by the owners.