Real Estate

Work with condo board when you want to make changes: Mackey

By Jennifer Brown, Senior Editor

If you live in a condo and want to build a deck or make other changes to your common areas, work with your board to enter into a mutual agreement that will make it permanent to avoid future cost and conflict, says Toronto condominium lawyer Megan Mackey.

In a recent case, the court ordered a condo owner to enter into a s. 98 agreement of the Condominium Act or remove the deck they built on common elements without obtaining consent.

“The takeaway for owners in this case is that if you want to change your common elements, you have to sign a s. 98 agreement. It is there for your benefit because it will enshrine the change in your home and it will benefit future owners and possibly your sale price,” says Mackey, a partner with Shibley Righton LLP.

Section 98 of the Condominium Act states that owners can’t make additions, alterations or improvements to the common elements without getting prior approval from the condo corporation. It also sets out the duties relating to damage and repair, maintenance, and insurance for the alteration and requires that the s. 98 agreement be registered on title so that the obligations are binding on future owners.

While the condo owner built the deck without the board’s permission, Mackey tells that the board proceeded in a reasonable manner.

“What I did like about this case was the condo board’s behaviour when they learned about the change to the common elements,” she says. “These s. 98 agreements are supposed to be signed before the change is made, but this board was very reasonable and said just sign a s. 98 agreement and we can move on.

“Many owners make changes to the common elements, and it’s usually innocent, but when the board finds out, they can request that the change be taken down. This board didn’t ask that the deck be removed.”

However, the owner didn’t want to sign a s. 98 agreement, arguing a neighbour had built a similar deck but had not been required to do so.

“It is possible that previous boards had turned a blind eye to owners making these kinds of changes,” says Mackey.

Also, just because past boards allowed an owner to make changes, doesn’t mean future boards will.

“Boards change, and they can change their mind. When you sign a s. 98 agreement, it gets registered on title to your unit. It’s there forever, so a board can’t change its mind. If I were the unit owner, I would have jumped at the chance to get the s. 98 agreement signed and on title. That way, my deck could stay forever — even when I sell.”

The owner had a number of reasons as to why he didn’t want to sign the agreement — one was that he felt the condo corporation wasn’t maintaining the backyard, but Mackey says that doesn’t mean you can breach the Act.

“The judge even made a comment that the deck certainly improved the backyard, and that’s the kind of thing you’d want as a homeowner. When you have people spending money on their homes, I always see that as a good thing — you’re improving the property,” she says.

“The condo board is always going to be able to enforce the Act. Past non-compliance is not relevant to how condos should act going forward,” Mackey says.

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