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Does a Hot Tub in Your Condominium Back Yard or Terrace Need Approval?

Recently the Ontario Court of Appeal clarified Section 98 of the Condominium Act (the “Act”), entitled “Changes made by Owners”.  This section reads that an owner can make an addition, alteration or improvement to the common elements if, among other things, the owner gets approval from the condominium board (the “Board”) by way of resolution.

In Wentworth Condominium Corporation No. 198 v. Jim McMahon, the Court took on the task of defining what is meant by the above section, more specifically, what is meant by the words “addition, alteration or improvement”.

The unit owner and defendant, Jim McMahon, installed a hot tub in his condominium townhouse backyard patio.  Under the condominium declarations, his backyard patio is considered an “exclusive use” common element and therefore the Board argued that the installation of the hot tub was an addition, alteration or improvement under the Act and therefore was a violation of the Act.  The Board took McMahon to court in order to enforce removal of the hot tub.

After the application judge ruled in favour of McMahon and found that the hot tub was not an addition, alteration or improvement, the Board appealed.  The Court of Appeal agreed with the application judge’s interpretation, namely that the word “addition” means something that is joined or connected to a structure, the word “alteration” means something that changes the structure, and the word “improvement” implies that there must be a resulting increase to the value of the property.

The Court agreed with the application judge’s conclusion that a hot tub is not an addition because it is neither joined nor connected to the structure, and the mere connection to an electrical cable does not make it a permanent fixture on the property.  The hot tub is not an alteration because it is not a permanent change to the structure and, lastly, a hot tub is removable and therefore is not a permanent fixture that increases property value.

The above analysis cannot apply to all cases but has become the starting point to define the meaning of “addition, alteration and improvement” under Section 98 of the Act.  It seems that in order for something to fall under this section, the change to the unit’s exclusive use common element must be something of permanence.

Interestingly, the Court began their analysis by considering the principle that condominium ownership is a balance between the rights of individual owners and the rights of the owners collectively speaking through their board of directors.  In the opinion of the Court, the ruling struck that appropriate balance because it ostensibly did not infringe on the rights of other unit owners.

It is important to note that this particular condominium allowed barbecues; thus, the judges found that the hot tub was akin to having a barbecue.  Moreover, the hot tub was installed on a ground floor of a patio; therefore, condo owners who want to install a hot tub on the terrace of their 40th story penthouse suite should not rely on this case for their approval.

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