Part 2 published on 01/05/03
Owner entitled to keep satellite dish
The condominium corporation sought an order requiring the owner to remove his satellite dish. The court refused the application, and allowed the owner to keep the satellite dish.
The court said:
- The corporation’s rules prohibited installation of any “television antenna or mobile telephone radio or short-wave antenna, tower or similar structure”. This does not specifically refer to satellite dishes. A satellite dish is not an “antenna” and is not a “similar structure”.
- Furthermore, even if the rule did prevent the installation of a satellite dish, the Board in this case would be unable to enforce the rule against this owner, due to the Board’s previous conduct. The Board had acted in a manner that was oppressive and unreasonably prejudicial to the owner. For example,
- Other owners had been permitted to install satellite dishes;
- The Board did not attempt to amend the by-law dealing with satellite dishes, even after it became apparent that a majority of the residents were in favour of such an amendment (to permit satellite dishes).
The court said that a corporation’s failure to enforce a provision prohibiting satellite dishes is “akin to a pre-existing non-conforming use, on a common element to which no objection by other owners has been taken.”
The Corporation was ordered to pay costs to the owner. Furthermore, the owner did not have to contribute his share of the special assessment which would be levied to pay those costs.
[Editorial Note:
There is a growing line of condominium decisions stating that condominium corporations must be fair, consistent and timely in applying the corporation’s by-laws and rules. Failing such, the by-law or rule may be rendered unenforceable.
According to this case, condominium corporations wishing to prohibit satellite dishes should also be examining their by-laws or rules to ensure that they make specific reference to “satellite dishes”. Otherwise, the Rule may not apply to satellite dishes at all.
I note that the court also more or less ignored the condominium corporation’s additional argument that “even if the by-laws do not specifically address satellite dishes, they still have the authority to regulate the common property”. The court adopted the following reasoning:
“Restrictions being in derogation of the common law right to use land for all lawful purposes will not be extended by implication to include any use not clearly expressed…nor will they be aided or extended by judicial construction”.
In other words, restrictions upon an owner’s ordinary right to use his or her land must be very clear. But this assumes that condominium owners have the “ordinary right” to make modifications to the common property, which of course is not the case. Owners generally cannot modify the common elements without approval. There have also been many other court decisions stating that the installation of a satellite dish is a common element modification.]