After a condo unit owner constructed a backyard deck on the common elements abutting the owner’s unit without obtaining the consent of the condominium corporation, the corporation applied for a court order compelling the owner to enter into a section 98 agreement. (D.C.C. No. 43 v. Bradley)
Section 98 of the Condominium Act, 1998 (the “Act”) provides that owners cannot make any addition, alteration or improvement (“Alteration”) to the common elements without obtaining the consent of the corporation and without entering into an agreement that allocates the cost of the Alteration between the owner and the corporation, and also sets out their respective duties and responsibilities relating to repair after damage, maintenance and insurance of the Alteration. The Act further requires that section 98 agreements must be registered on title so that the obligations of the owner relating to the Alteration will be binding on future owners of the unit.
A number of telling points were set out in the court decision:
- There is no right vested in an owner to make any Alteration to the common elements;
- The Act merely provides a mechanism whereby an owner can obtain consent to make an Alteration to the common elements;
- The consent to make an Alteration is at the discretion of the condominium board and the Act does not limit this discretion;
- Consent to make an Alteration can be denied for safety concerns, aesthetic reasons and reasons relating to market value, among others;
- Even if other owners were able to make an Alteration to the common elements without consent and without entering into a section 98 agreement, this does not constitute a waiver of the requirements of Section 98.
The owner had argued that: the deck was needed as the condition of the yard was unsafe, muddy and an eyesore; the deck would be removed prior to the unit being sold; and the owner of the adjacent unit was not required to enter into a section 98 agreement for a similar deck. The owner’s points were determined by the court not to be relevant. The court concluded that the deck was an Alteration that requires maintenance and repair and also gives rise to potential liability and for this reason a section 98 agreement was required.
The owner was ordered to either enter into a Section 98 agreement or remove the deck within 30 days, failing which the Corporation is entitled to remove the deck and the charge the costs to the owner as common expenses.
Condominium unit owners need to understand that while they own their own unit, they do not have the same rights and freedoms as owners of freehold property. Condominium owners are bound by the obligations and restrictions contained in the condominium declaration and rules and the Act.
