Condo boards can ban balcony barbecues: Mackey
By AdvocateDaily.com Staff
Residents will struggle to challenge condo-imposed bans on balcony barbecuing, says Toronto condominium and commercial litigator Megan Mackey.
Mackey, partner with Shibley Righton LLP, says Ontario’s Condominium Act gives condo corporations broad power to set their own bylaws regarding behaviour, not just in common areas, but also inside an owner’s unit.
Some of the most problematic — yet common — restrictions involve smoking, pets and parking, but barbecue bans are not unheard of, Mackey tells AdvocateDaily.com. And while rules can be challenged in court, she says unit owners and residents face an uphill battle to overturn them.
While little of the existing case law deals with barbecues specifically, she says decisions concerning balcony, patio and terrace furniture, such as pergolas or trellises, suggest judges will give a great deal of deference to the condo board that set the rule in question.
“As long as the rule is reasonable and promotes the safety of people in the building, the court probably won’t interfere, so condos are pretty free to do whatever they deem fit,” Mackey says.
In fact, she says there is a stronger case to be made that barbecue restrictions are justifiable for safety reasons due to the smoke and odour concerns that come with a grill, as well as the potentially flammable propane power source.
“It doesn’t seem at all unreasonable to impose a ban in cases where you have balconies near to other residents’ windows if the smoke can blow in,” Mackey says.
She says some condos draw a distinction between propane and electric barbecues, acknowledging the reduced fire risk attributable to the plug-in version.
“Even with an electric barbecue, there are still no guarantees it will be allowed on the balcony. The building would have to be designed in such a way that odours and smoke will not blow into other units,” Mackey says.
For prospective condo owners who regard the right to barbecue as make-or-break, she advises them to carefully read the condo’s declaration and bylaws before committing to any purchase. Some condo corporations have made a virtue of their own permissive rules regarding barbecue use, Mackey adds.
“There are buildings where dedicated gas lines have been put out to terraces or balconies, which eliminates at least the safety concerns about propane tanks,” she says. “Then there are other situations where the condo has a very large terrace or rooftop patio, where barbecues are installed for communal use, or where owners are allowed to keep their own.
“Hopefully that would meet people’s needs. It would certainly be nicer to use a barbecue on your own balcony, but it’s not always feasible,” Mackey says.