Part 26 published on 01/05/09
Hot tub not a change to the common elements
The condominium corporation applied for an Order requiring the unit owner to remove his hot tub, privacy fence, water fountain and metal trellis (in his exclusive use patio area).
The Court ordered the removal of the privacy fence, water fountain and metal trellis, but did not order removal of the hot tub.
Hot tub
The Court said that the hot tub did not contravene any Rule of the corporation and also did not qualify as “an addition, alteration or improvement” for the purpose of Section 98 of the Condominium Act, 1998. The Court said:
“The hot tub is not an addition as it is not something that sensibly can be seen as being joined to or connected to the structure. It is connected by an electrical cable, but the purpose of the electrical cable is to supply power to the hot tub, not to affix the hot tub to the structure. Furthermore, even though it may take a half-hour and two men to move, the hot tub is still designed to be removed from the property. It is not a permanent fixture on the property.”
“I also note that several other owners at WCC have gas barbecues that are connected to their units by a gas line. The WCC has not required any of those owners to seek the approval of the Board. In my view McMahon’s hot tub is very similar to a gas barbecue that is connected to the unit by a gas line. The purpose of the gas line is to supply power, not to affix the barbecue to the property.”
Other Items
The parties agreed that the Board’s approval was required in relation to the fence, the fountain and the trellis. However, the owner argued that the Board had accepted many other fences and landscaping items in other locations and therefore should similarly allow the owner’s changes. The Court said that it was impossible to show that the Board had treated the owner differently from other unit owners (by asking for removal of the fence, fountain and trellis) because each rear-yard situation was unique.