The case deals with Wentworth Condominium Corp. 198, a residential project in Waterdown, Ont. Each of its 31 condominium townhouse units has a backyard that forms part of the common elements of the corporation, and each owner has exclusive use of that backyard.
In late 2007, Jim McMahon, one of the unit owners, asked the condominium board for permission to install an above-ground hot tub on his back patio. The board refused.
Eventually, without the board’s consent, McMahon installed the hot tub on the patio. The tub itself is 1.8 metres wide, two metres long and a little over one metre high. It is a one-piece unit that weighs about 136 kilograms empty.
It is filled by a garden hose and holds 1,000 litres of water weighing 1,000 kilograms. The tub occupies about 25 per cent of the backyard and its heater is hard-wired to the electrical panel in the McMahon unit.
Section 98 of the Condominium Act requires a unit owner to obtain the board’s approval in order to “make an addition, alteration or improvement to the common elements” of the corporation.
After the tub was installed, the condominium corporation applied to court to order the removal of the hot tub. At the original hearing in March 2009, Justice Joseph R. Henderson dismissed the application. He ruled that the hot tub was neither an addition to the common elements, nor a permanent alteration or improvement, and that McMahon did not need board approval to place it in his backyard.
The board appealed the decision, and the case was heard by the Ontario Court of Appeal in November last year. Writing for a three-judge panel, Justice James C. MacPherson dismissed the appeal and again ruled in favour of McMahon.
In rejecting the board’s case, the appeal court likened the hot tub to “barbecues, picnic tables, small inflatable swimming pools, children’s toys and thousands of other ordinary articles that are regularly found on backyard patios …
“If the approval of the board of directors is not required for the barbecue and picnic table, then it should not be required for the hot tub,” the court wrote.
The three judges of the Court of Appeal agreed that the decision of the judge on the original application struck an appropriate balance between the rights of the individual owners and the rights of the group of all the owners speaking through their board of directors.
The court decision has received mixed reviews in the condominium community, with lawyers for individual owners welcoming it, and condo boards and their lawyers believing it went too far in favour of owner’s rights.
Toronto condominium lawyer Audrey Loeb was disappointed in the outcome. She predicted that condominium boards across the province may be looking to revise their rules to clarify what is and what is not permitted on common elements such as patios, yards and balconies.
The third edition of The Condominium Act: A User’s Manual, by Audrey Loeb, has been released by Carswell, a publishing arm of Thomson Reuters.
The new edition is a “must-have” for condominium boards, property managers and owners who want to be updated on their rights and obligations.
It features 40 comprehensive “how-to and what you need to know” checklists, the full annotated text of the Condominium Act, more than 200 summaries of court cases, a glossary of technical terms, and answers to key questions all condo owners and managers should know.
Written by one of Ontario’s best-known condominium lawyers, the book sells for $89. Call 416-609-3800, or visit carswell.com and type Audrey Loeb into the catalogue search engine.