02/14/2017 – Jurisdiction Ontario
Part 57 published on 01/03/2017
Owner entitled to make changes under terms of easement; no need for agreement under Section 98 of Condominium Act
TSCC 1530 granted an easement to TSCC 1529 and its owners. The easement included rights to make certain alterations to the TSCC 1530 property.
One of the owners at TSCC 1529 proposed to make certain alterations in accordance with the easement. TSCC 1530 asserted that this required an agreement pursuant to Section 98 of the Condominium Act. Section 98 applies to proposed alterations to the common elements by an “owner”, and in this case the applicant owner at TSCC 1529 also owned 4 parking units at TSCC 1530.
The Court said that Section 98 did not apply and the alterations could proceed in accordance with the terms of the easement. The Court said that the ownership of the 4 parking units was incidental – not related to the unplanned alterations. In other words, the applicant was not proposing to make alterations “as an owner in TSCC 1530”.
