13/05/16 – Jurisdiction Ontario
Part 29 published on 01/02/10
Hot tub not an addition, alteration or improvement to common elements
Part 29 published on 01/02/10
Hot tub not an addition, alteration or improvement to common elements
The lower Court dismissed the condominium corporation’s Application for an Order requiring removal of the owner’s hot tub. The lower Court held that the hot tub did not contravene any rule of the corporation and also did not constitute an “addition, alteration or improvement” for the purposes of Section 98 of the Condominium Act, 1998 (because it was not sufficiently connected or affixed to the property). [See Condo Cases Across Canada, Part 26, May 2009]
On appeal, the Court of Appeal upheld the lower Court’s judgment. The Court of Appeal said:
- In my view, the application judge’s interpretation of s. 98(1) of the Act strikes an appropriate balance between the rights of individual owners and the rights of the owners collectively speaking through their board of directors.
- If the approval of the board of directors is not required for the barbecue and picnic table, then it should not be required for the hot tub.
- However, there will be cases where the application judge’s definition will not work. The size and difficulty of moving an object, as mentioned by the application judge, might lead to a different result. To this I would add the possibility that a qualitative assessment of an object an owner might want to place on the patio might also lead to a different result – for example, an owner could not hope to store scores of disused and ugly tires, or ugly rusting equipment or vehicles, or a giant ugly billboard of the New York Yankees World Series team on his patio without obtaining the approval of the board of directors of the condominium corporation.
- In the end, each case will have to be decided on its own facts. For now, though, I would say that the application judge’s interpretation of the key words of s. 98(1) of the Condominium Act is a good one. It will resolve most, but not all, cases. It resolves this case.
The Court of Appeal added, however, that the condominium corporation might have been able to prohibit the hot tub by way of a rule.