Standard Bylaws 5 and 6 both requrie owners to obtain permission before making an "alteration" to a strata lot or the common property.The term “alteration” was first given judicial consideration by the Ontario Superior Court of Justice in Wentworth Condominium Corporation 198 v. McMahon 2009 CarswellOnt. 1273. That particular case dealt with the installation of a hot tub in the backyard of a townhome. The hot tub was simply placed on the patio and connected to the building by way of an electrical cable. The issue before the court was whether the placement of the hot tub was an “addition, alteration or improvement” that would require approval of the condominium corporation’s board pursuant to s. 98 of the Ontario Condominium Act. In making its decision the court considered what each of those three words meant, stating:
22. Therefore, I find that the word “addition” means something that is joined or connected to a structure, and the word “alteration” means something that changes the structure.
23. I find that the word “improvement” means the betterment of the property or enhancement of the value of the property. I also accept that an “improvement” refers to an improvement or betterment of the property. That is, to be an improvement there must be an increase in the value of the property. If the item increases the enjoyment of the property, but does not increase the value of the property, I find that the item is not an improvement.
In the end, the court concluded that placement of the hot tub on the common property did not constitute an addition, alteration or improvement since it did none of the things those words encompass. (A similar decision was reached by the British Columbia Supreme Court in The Owners, Strata Plan LMS4255 v. Newell 2012 BCSC 1542). The decision in Wentworth was upheld by the Ontario Court of Appeal which affirmed the definitions used by the trial judge.
The decision in Wentworth was applied in British Columbia in The Owners, Strata Plan NWS254 v. Hall 2016 BCSC 2363. In that particular case, Mr. Hall proceeded to replace four windows and a patio door which the strata corporation had refused to repair. He then proceeded to sue the strata corporation for the cost of doing so. (As an aside, the court held that the windows and doors were in such poor condition that they needed to be replaced as opposed to repaired and awarded Mr. Hall the costs he expended in doing so). In its defence, the strata corporation argued that Mr. Hall should not be entitled to any compensation because he did not obtain the permission of the strata corporation to alter the common property as required by Standard Bylaws 5(1) and 6(1). In rejecting that argument the court applied the decision in Wentworth and concluded:
[41] Here, the work involved the removal and replacement of four windows and the patio door. The replacement of the windows and door did not change the structure of the respondents unit, or the common property. I conclude that the replacement of the four windows and the patio door was not an “alteration” within the meaning of ss.5(1) or 6(1) of the Standard Bylaws requiring the prior approval in writing of the Strata Corporation.
What becomes evident from the decision in Hall is that Standard Bylaws 5 and 6 are not as far reaching as most strata corporation’s would think. Under the Standard Bylaws an owner can do virtually anything they want to a strata lot without permission of the strata corporation so long as it does not change the structure of the strata lot. Unfortunately, the court did not decide what constitutes “structure” of a strata lot. The Canadian Oxford Dictionary defines it as:
4. A whole constructed unit, especially a building (i) the way in which a building etc. is constructed. A set of interconnected parts of any complex thing; a framework. Common sense would interpret it to mean the framework underlying the strata lot.
Under the Standard Bylaws it is unclear whether an owner would require permission to install a new kitchen, renovate their bathroom or replace flooring. None of those on the face of it would necessarily alter the “structure” of the building.
Given the decision in Hall, strata corporations should be considering revising their bylaws pertaining to alterations to strata lots and the common property. Even referring to such things as “additions” and “improvements” may not be sufficient to capture all aspects of work that may be done to either of these. Broader wording may be required. Each strata corporation will need to consider the degree of control which it wishes to have with respect to changes to strata lots and to the common property. It may be that a much broader degree of control is desired over the latter. Bylaws may even need to be amended in order to address specific issues such as changes in flooring or the enclosing of balconies.
This article is intended for information purposes only and should not be taken as the provision of legal advice.
