Part 40 published on 01/11/12
Strata corporation unfairly demanded removal of balcony enclosure to permit common property repairs
The owner had installed a balcony enclosure with the consent of the strata council. The strata council needed to attend to roof and gutter repairs, and demanded that the owner arrange for removal of the balcony enclosure to allow for those repairs to proceed.
The Court said:
In the absence of significantly unfair conduct on the part of the strata council in directing the respondent to remove the enclosure at his expense the council is entitled to insist on removal.
However, the Court held that the strata council’s demand was significantly unfair in this case, because it failed to give proper consideration to another alternative (which would avoid removal of the balcony enclosure). The Court said:
The cost to the (owner) of removing and later replacing the enclosure on unit 210 would be substantial.
…
In my opinion the council has resisted a reasonable and satisfactory solution to the roofing and gutter repairs in relation to Unit 210 without giving adequate consideration to the cost and inconvenience to the (owner). This is not the case of a strata council deciding it must sacrifice the interest of a single strata unit owner to achieve a greater good for the majority of the owners.
…
The (strata corporation) must find reasonable means to effect the roof and gutter repairs adjacent to Unit 210 without the removal of the enclosure.
[The Court concluded that the required repairs could perhaps be effected by using a scaffold, as suggested by the owner (without removing the balcony enclosure). The strata council had considered this proposal, but had imposed conditions which were not acceptable to the owner. The Court concluded that the strata council had not given the proposal fair and reasonable consideration, and evidently should not have imposed the conditions that it did.]